Deed Restriction Laws

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 What is a Deed Restriction?

Deed restrictions are types of private agreements which restrict the use of real estate. These restrictions are typically listed within the written deed document which relates to the property.

Deed restrictions should be noted when a property is transferred or sold. Deed restrictions can also place limitations upon the title to a piece of property, including when a seller desires to sell their property according to specific conditions.

Deed restrictions are also known as covenants, codes, and restrictions. These restrictions may limit almost any activity, including what colors an owner can paint their house and if they can park their car in their driveway.

Deed restrictions are fairly easy to create and difficult to get rid of. When an individual deeds their property to another individual, they have the right to restrict what rights they offer.

For example, an individual may deed their house to one person and the rights to any minerals in the ground to another individual. An owner may also attach stipulations to their deed which limits the new owner’s ability to do certain things with the property.

For example, a deed may give an individual ownership of a home with a provision that the new owner cannot paint it any color other than off-white. If the buying party accepts the deed, they also accept those restrictions.

The majority of restrictions come into play when a developer builds a planned community. Restrictions are used to help preserve the appearance of the community as well as general standards of upkeep in the hopes that the property values will be protected over time.

Typically, these restrictions are found in a separate document which gets recorded by the owner of the property and remains with the land in perpetuity.

What Are Some Common Types of Deed Restrictions?

There can be numerous different types of deed restrictions which differ according to the various needs of the owners and sellers of property. Common deed restrictions may include:

  • Limitations on land use;
  • Restrictions pertaining to the development and additions to home structures;
  • Restrictions involving the uniformity of structures in a given residential area, which is common for deeds to condos and co-ops; and
  • Specific instructions regarding the transfer of the deed.

Deed restrictions often involve the overall themes or plans for a neighborhood, not just the personal interests of the property owners. Because of this, enforcing deed restrictions often involves competing interests of numerous parties.

Where Are Deed Restrictions Recorded?

Deed restrictions are recorded in a registry of deeds. This is where documents which establish property ownership are recorded in the official books.

These documents typically include the deeds to properties. However, they may also include information regarding:

  • Mortgages;
  • Real estate contracts; and
  • Other property documents.

A registry of deeds is typically maintained by public officers or county officials. The documents at the registry of deeds are available to the public.

A register of deeds may also be referred to as a register of deeds or recorder of deeds. The register of deeds is very important for providing information and support for real estate purposes.

The recorder of deeds is an office in which titles and deeds to real property are recorded and registered. The recorder of deeds maintains one location where the records of property deeds are indexed.

An index or registry of deeds may be searched by an individual who may be interested in obtaining title to the property. A recorder of deeds, which may also be called a county recorder, is usually operated at the county level.

The types of documents which are regularly recorded by the recorder of deeds includes:

  • Deeds;
  • Mechanic’s liens;
  • Mortgages; and
  • Releases.

The recording and registration of deeds is governed by state recording acts. A recording act is a law which regulates recordation, title searches, and deed contests.

It is essential to have a recorded deed. This is especially true when there is a property dispute where more than one party is attempting to record a deed for the same property.

Who Enforces Deed Restrictions?

Generally, if there is a single deed restriction, only the individual or body who created it can enforce it. For example, if a state enacts a law that prohibits individuals from having boats on their property, the state would then enforce that restriction.

If the restrictive covenant governs an entire condominium building or a subdivision, they are enforceable by one or all of the property owners in that community. For example, if an HOA establishes a rule regarding exterior paint covers, deed restriction enforcement would be with that HOA.

It is important to be aware that liability for breaking a covenant rests with the titleholder to the property, even if that individual is not the one who technically engaged in the deed restriction violations. It is also important to note that not all deed restrictions are enforceable.

A deed restriction may be illegal if they violate the Constitution. For example, if there is an old restriction on a deed which limits the property ownership only to caucasians, it would not be enforceable because the Constitution forbids this type of discrimination.

When Are Deed Restrictions Not Enforceable?

Although a deed restriction may be helpful for numerous parties, there are situations in which they cannot be enforced, which may include:

  • The time period or applicable term for enforcement has expired;
  • A condition for enforcement is no longer applicable or valid;
  • The restrictions provisions are illegal, including those that violate zoning laws; and
  • A deed restriction is clearly against public policy, which includes restrictions that encourage housing discrimination.

When an individual is seeking to have a deed restriction enforced, a court will typically draw upon local and state laws. Because of this, the enforcement of deed restrictions may vary by region.
The legal remedies for violations of deed restrictions may include an award of monetary damages of another type of compensation.

What Happens if You Break a Deed Restriction?

If a deed restriction is broken, the party who created the restriction or their heirs may seek to enforce the restriction by filing a lawsuit to take the property back. Depending upon how aggressive a party wishes to be regarding enforcing the deed restriction, the consequences may vary from receiving a notice to fix the restriction which was violated to a fine.

If the violating party does not fix the violation or pay the fine, it may escalate to foreclosure. It is important to note that the passage of time may limit the right to enforce deed restrictions.

In most cases, ignorance of a deed restriction is typically not legally excusable. In the majority of jurisdictions, the rule buyer beware applies. A potential buyer should fully investigate any potential deed restrictions ahead of time.

Do I Need a Lawyer for Assistance With Deed Restriction Laws?

It is essential to have the assistance of a property lawyer for any questions, concerns, or issues you have with deed restriction laws. A deed restriction may sometimes be necessary in order to properly manage certain parcels of land.

Your attorney can assist you with drafting, reviewing, or contesting deed restrictions. Your attorney can also assist you with researching deed restrictions which may apply to property you want to purchase. Should any issues arise related to a deed restriction, your attorney will represent you in court.

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