Legal Questions Answered By Griffin & Murphy, LLP


Griffin & Murphy, LLP, is a boutique law firm in Washington, D.C. concentrating its practice in real estate law (including development, finance, leasing, zoning and condominium conversions), as well as estate planning and probate, civil litigation, and business law. The attorneys of Griffin & Murphy, LLP are licensed to practice law in the District of Columbia, Maryland and Virginia. Griffin and Murphy, LLP was founded in 1981.

Please send any legal questions relating to real estate, rentals, buildings, renovations or other legal items to princeofpetworth (at) gmail (dot) com, each week one question will be featured. You can find previous questions featured here.

A reader, Vicky, writes:

“I am wondering what the laws are for using vacant lots for gardening purposes. I am a renter on the 700 block of Morton Street NW and I hate to see the space at 725 Morton Street (picture attached) wasted and covered with trash (the picture does not reflect the current trash levels, which are much worse). While there is nothing I can do about the building (a neighbor told me that it is owned by the city after they discovered that the guy building it didn’t have the proper permits), I would love for the front yard to be used as some sort of garden. Veggies, flowers, or just a few trees – anything would be better than the condition it’s in now. I’m sure there are safety concerns about people being in the front yard of a building that’s only half-finished, but is there any sort of precedent for a community group using space like this for a similar purpose? And leads on who to contact to get that ball rolling? Or if it’s illegal – what is the likelihood of adverse consequences to going ahead and planting things there anyway (not the easiest thing in the world, the dirt would need a lot of work)? Any thoughts from the legal experts and the readers on ways to improve this lot, and consequently the whole block, would be appreciated!”

Griffin & Murphy, LLP respond:

This property, which is actually located at 723 Morton Street N.W., received some publicity a couple of years ago because the owner was cited by the city for illegal construction. Although the city cited the owner for building the existing structure without the proper permits, it has not condemned the building, and therefore, it is still privately owned property. Strictly speaking, you are not allowed to legally enter upon private property without the owner’s permission, and to do so would constitute a trespass. If a “No Trespassing” sign has been posted by the owner, you could be liable for criminal trespass, which might result in your arrest if the police were called; otherwise, you would only be guilty of civil trespass, which exposes you to liability for actual damages only. It would be hard to argue that you damaged this property if you planted a garden in the front yard.

Because the structure on this property was illegally constructed, the DC government has the authority to raze the building and charge the property owners for the cost of the demolition. If the city has not condemned the property up until now, we think it unlikely that it will do so in the near future barring some major change in the conditions on the property. We suggest that you contact DCRA to see what their intentions are with regard to this property and its owner. Answer continues after the jump.

If this property were to be condemned by the city, you would still not be able to enter it legally unless the city approved it for public use, which it is unlikely to do under the present circumstances given that there is a partially completed and possibly dangerous building on the property.

As you may know, the city recently enacted legislation that changed the law so that vacant properties are no longer taxed at the onerous Class 3 rate ($10 for every $100 of assessed value), and instead, the Class 3 rate now applies exclusively to properties ruled by DCRA or the Board of Condemnation to be “blighted.” There is a good chance that this property in its present condition might be considered to be “blighted.” Therefore, the owner of this property might be willing to allow you to plant a community garden or at least clean up the front yard because these efforts might make it more difficult for DCRA or the Board of Condemnation to classify this as a “blighted” property. I would contact the owner of the property to see if they are willing to work out an arrangement with you.

This response was prepared by Mark G. Griffin and Patrick D. Blake of Griffin & Murphy, LLP. The material contained in this response has been prepared for informational purposes only and should not be relied upon as legal advice or as a substitute for a consultation with a qualified attorney. Nothing in this response should be considered as either creating an attorney-client relationship between the reader and Griffin & Murphy, LLP or as rendering of legal advice for any specific matter.

17 Comment

  • We have a similar (slightly) issue with a strip of property in the alley area behind our block. It has been used for dumping, parking cars, boats etc; we are testing the soil now.
    We aren’t sure who owns it (we have a name etc from public records). It’s clear that whoever this person is, they have never lived in the area. It seems to have been subject to “adverse possession” by a number of users for years (hence the dumping and parking). We’re just going to bum rush it, treat the soil, and plant etc. without permission.

    The only possible dispute would be with the neighbors who’s pretty much “squatted” (by parking cars etc on the strip) not the actual owner. We plan to allow them to plant/use produce from the garden as the trade. Any advice from the counselors on that?

  • Google “guerrilla gardening DC”

  • Thanks to Vicky for this question and to POP for posting as well as Griffin and Murphy for their response.

    My fiance and I also live on this block and over a year ago contacted Jim Graham’s office about this very property and the front space. There used to be a plywood wall “fencing” off the front which, only provided cover for passerbys to sneak into the front of the property and use it for drinking and whatever else.

    We’d be more interested in a long-term change/solution either through renovation or deomolition. The back of the property also has trash and debris and is dilapidated.

    ps – POP, the city has been repairing the sidewalks on this block all week. You may want to check it out if you get a chance.

  • This is a great POP feature and many thanks should go to Mark (the attorney) for fielding these questions pro bono. I have one comment, from the tax records, it appears the owner of the property has not paid taxes in several years and the outstanding amounts (except the recent $10 vacant property bills) have been sold at tax sale auction.
    So, it’s even a bigger mess…or maybe the tax $ owner is putting pressure on the owner/or working through the tax sale process to take title.

  • One thing to consider – there is a non-zero chance that you can’t get a spade in the soil more than 2 inches before hitting irrigation pipes and other obstructions, which would make gardening here much more challenging. Might be worth it to hop the fence and do a little exploring before going through all that other hastle.

  • I would just start planting, without the proper permissions. What’s the worst thing that can happen? That the owner actually fixes the place up and removes your plants?

  • I think that this is a great idea. Does anyone know where to get the soil tested to see if it is safe to grow veggies?

  • great feature PoP. Keep ’em coming. as much as i enjoy the “arm-chair” lawyers on this site, its nice to get a more educated voice into the mix.

  • Listen to this advice for what it’s worth. Understand your potential penalties. Be willing to pay the penalty if it comes to that. Then just do it.

  • Regardless of your final decision-please, please, please use raised beds with soils that you know the environmental condition. “Testing soil”, as stated above, not followed by proper Phase I and II environmental site assessments, will not necessarily bring to light all of the various contaminants that are of concern, particularly on lots that have unknown history. If you own the property you can contact and environmental firm to perform these assessments. If you do not own the property do not use the current soil to grown products you plan on consuming. Just my thought as an environmental scientist.

  • So exactly how bad are veggies grown in dubious soil? And how do we find out? Do you eat 10 eggplants and die? Fifty zucchinis over 10 years and come down with cancer? I know lead and heavy metals are bad etc. but no one ever really gives us details. Is there someplace to find out that soil with x ppm of y contaminate will result in z oz. of arugula giving you brain damage? I crave good science, realize it is rarely available, but abhor flimsy spooky scares.

  • Victoria: This is a topic that people study and test for their entire lives and there is loads of hightly debated literature, acceptable levels of exposure, long and short-term effects, etc. What I can suggest is to take a search around the below websites but make sure to note that these are generally non-site specific are are just a guideline. These are government agencies and although based in science there are always political factors at play. There are also numerous non-profit organizations that specialize in toxic/hazardous substances, soil quality, food quality, etc. Hope these help. (specifically “residential soil sampling section)

  • mid city guy

    fyi. Just thought I’d add that on most parcels in DC, the property line terminates at the face of the building, so the front yard is actually public space.

    • Many rowhouses in DC do abut the street sides of their property lines, but there is no requirement that they have to. We checked the records for this property before writing the post, and the front yard does in fact belong to the owner of he building.

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