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Lot of record and nonconforming lots

A lot of record is a lot shown on a recorded plat or deed. Many ordinances let you build a house on a lawfully created lot that is now too small, with conditions, but some treat adjoining lots in one ownership as one lot.

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Quick summary: This guide explains what a lot of record is, what makes a lot nonconforming, and whether you can build on an older lot that is smaller than today’s rules allow. It is for infill builders, investors, and owners of older or vacant lots. The key takeaway: a lawfully created lot often keeps a right to one house, but the ordinance sets conditions, and adjoining lots in one ownership can be treated as a single lot.

What a lot of record is

A lot of record is a lot whose boundaries appear on a document recorded at the register of deeds. Durham’s defined terms give one adopted wording: a parcel described by metes and bounds, or delineated by boundary dimensions, on a plat recorded in the office of the register of deeds.

The term matters most when a lot is old. A town can raise its minimum lot size, width, or depth after a lot is recorded. The recorded lot does not change, but the rules around it do. That gap is what makes a lot nonconforming.

A lot of record is not the same as a tax parcel. The county can map several recorded lots as one parcel, or one lot as two parcels. Read the plat and the deed, not the tax map, to see the recorded lots. See Plat map: what it is and how to read one.

What makes a lot nonconforming

A nonconforming lot is a lot that was lawfully created and no longer meets the current minimum standards. Franklin County’s nonconformities article describes nonconformities as lots, uses, structures, and site elements lawfully established before the ordinance was adopted that no longer conform to it.

Two kinds of small lot look alike on a map and differ in law:

  • A lawful nonconforming lot. The lot met the rules, or no rule applied, when it was created. Later rules made it substandard.
  • An unlawful lot. The lot was cut off in violation of the rules in force at the time. Nonconforming lot provisions do not cure it.

Ordinances also stop new substandard lots. Durham’s nonconforming lot section prohibits creating a lot narrower or smaller than the zoning allows, except in listed cases. Those cases include governmental action such as a road widening, the enlargement of existing nonconforming lots, permanent open space, and an approved variance.

Can you build on an undersized lot of record

Often yes, for a house, if the lot meets the ordinance’s conditions. Three adopted ordinances show the range.

Ordinance What it allows Main conditions
Raleigh A detached house, a tiny house, or a two-unit attached house where that use is allowed The lot was shown by a recorded plan or deed, owned separately from adjoining tracts when its creation was lawful. All rules except lot area, depth, and width still apply.
Durham A single-family or two-family residence At least 30 feet wide, outside a Special Flood Hazard Area, on a street maintained by NCDOT or the city, with water and wastewater available
Franklin County The use the lot would allow if it conformed No higher intensity use, such as a duplex, that needs a larger minimum lot

When the lot misses the conditions. Durham sends a lot that fails those conditions to its Board of Adjustment for a minor special use permit. The board must also make one of several findings, for example that the lot size fits the general pattern of the surrounding development.

Setbacks on a narrow lot. Some ordinances relax side yards on a nonconforming lot. Outside its Rural Tier, Durham requires each side yard on a narrow nonconforming lot to be at least 80 percent of the district’s required side yard. Franklin County directs the permit issuer to allow setback deviations, consistent with adjacent properties, when the standard setbacks cannot reasonably be met.

Everything else still applies. A small lot does not escape height, lot coverage, parking, flood, or septic rules. Raleigh’s section names lot area, depth, and width as the only standards it waives. A variance is the separate route for the rest. See Zoning variance: when the board of adjustment can relax a rule.

Watch for: A vacant lot beside another lot in the same ownership may not count as a separate lot of record. Check the ownership history before you price the lot alone.

When adjoining lots merge

Some ordinances combine adjoining substandard lots in one ownership, for zoning purposes, into one lot. This is the combination rule, and it can turn two lots on the plat into one lot for building.

Franklin County’s nonconformities article says an owner of a nonconforming lot that adjoins other undeveloped lots under the same ownership cannot use the nonconforming lot provisions. The rule does not apply when a majority of the developed lots within 500 feet, on either side of the street, are also nonconforming. A footnote states the intent: combine lots into conforming lots, except where that is out of character with the neighborhood.

Raleigh’s rule reaches a similar point by another path. Its waiver covers a lot owned separately and individually from adjoining tracts when the lot was lawfully created. Common ownership with the lot next door can defeat that condition.

The deed chain answers the ownership question. A title search shows who owned each lot and when. See Title search for land: what it finds and who does it.

Combining lots on purpose. Owners also recombine lots to make one conforming lot. State law exempts from subdivision rules a recombination of recorded lots that does not increase the number of lots and leaves each lot equal to or above the local standards.

What state law says about nonconforming lots

State law leaves most nonconforming lot rules to the local ordinance. Chapter 160D does not give every substandard lot a right to be built on.

One state rule limits new nonconformities. Under the down-zoning provision, a zoning amendment that creates a nonconforming lot on land not in a residential district needs the written consent of every affected owner. The provision also covers other down-zoning, such as an amendment that decreases the allowed density.

Take action: Send the lot’s address or parcel number, and get a first read of its recorded dimensions, its zoning, and the ownership questions to confirm. Start with Can the house you want fit on this lot?

What the plat and deed show

The plat and the deed show most of what decides a lot of record question.

  • The plat. It shows the lot lines, the dimensions, the recording date, and the plat book and page. Compare the width and area with today’s district standard. See Minimum lot size: what it is and how to find it.
  • The deed. It shows the legal description and the grantee. Deeds over time show whether the lot was ever held with the lot next door.
  • The zoning history. Planning staff can say which rule applied when the lot was recorded. That decides whether the lot was lawfully created.
  • The flood map. Some ordinances, Durham’s among them, send a nonconforming lot in a Special Flood Hazard Area to separate flood rules.

A lot that fails today’s standards may still be split from or joined to a neighbor. See Lot split: can you split your lot for the split side of the question.

Who answers the question

Planning staff answer whether the lot qualifies under the ordinance and which permit applies. A real estate attorney reads the deed chain and confirms whether a merger by common ownership occurred. A licensed land surveyor confirms the actual dimensions on the ground. The local health department confirms septic on a lot without sewer.

Key recap

  • A lot of record is a lot shown on a recorded plat or deed, and it can differ from the tax parcel.
  • A lawful nonconforming lot was created under earlier rules. An unlawful lot was never valid.
  • Many ordinances allow a house on a lawful substandard lot, with conditions on width, access, flood, and utilities.
  • Some ordinances treat adjoining substandard lots in one ownership as a single lot.
  • Planning staff, a real estate attorney, and a licensed land surveyor confirm the answer.

Questions

What is a lot of record?

A lot of record is a lot whose boundaries appear on a plat or deed recorded at the register of deeds. Ordinances use the term to decide which older lots keep a right to be built on.

Can I build on a lot that is smaller than the minimum lot size?

Often yes, if the lot was lawfully created and meets the ordinance’s conditions. Raleigh and Durham, for example, allow a house on a qualifying nonconforming lot, and every other standard still applies.

What happens to two small lots I own side by side?

Some ordinances treat them as one lot for zoning. Franklin County bars the nonconforming lot provisions when a nonconforming lot adjoins other undeveloped lots in the same ownership, with a neighborhood exception. Ask planning staff and a real estate attorney before you sell or build on one lot alone.

Does state law protect an undersized lot?

Not directly. Chapter 160D leaves nonconforming lots mostly to local ordinances, and requires owner consent for a down-zoning that creates a nonconforming lot outside a residential district.

References

Primary sources cited on this page, in APA style.

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