How to fight deed restrictions

Deed restrictions

When you buy a home, a legal document called a deed transfers from seller to buyer. It contains details such as the names of the new and former owners and a description of the property.

However, your deed may also list certain restrictions that have been placed on the property that are legally binding for all future owners.

Those restrictions often originate from homeowners associations (HOAs) hoping to protect the area’s quality of life and property values, but they can also be established by government agencies for the public good.

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Types of deed restrictions

Deed restrictions may limit what you can do with the property or how you are permitted to keep it. Some common deed restrictions relate to:

• The home’s square footage or number of bedrooms.
• Structure and height restrictions on foliage, trees or fences.
• How many vehicles you’re allowed on the property and where you can park them.
• What animals you’re allowed to keep.
• The number of outbuildings (sheds, garages, poolhouses) you’re allowed.
• Limits on the color, materials and design you can use in exterior renovations.
• Whether you can use the property for business purposes.

But there could be many more types of restrictions placed on a home.

Sometimes these rules are known as “restrictive covenants,” especially when they’re set and enforced by an HOA.

Deed restricted communities

When you live in a condominium, townhouse or a planned community or subdivision, you may have an organization that manages and enforces the rules for your area.

Deed restrictions can function like normal HOA rules for a community, but they’re legally attached to the land itself and may be more difficult to change.

These HOAs can be quite strict about their covenants, especially when the homes are in a mainly residential area. Since the members of your HOA tend to be your neighbors, violations are pretty likely to be called out.

Benefits

When you live in a deed-restricted community, you’ll never have to guess what your neighbors expect from you because you have the rules all written out.

And, assuming your home isn’t an outlier, you’ll know everyone is held up to the same standard.

This can appeal to homeowners who agree with the restrictions and crave a peaceful and orderly neighborhood.

Risks

Conversely, deed-restricted communities don’t suit the type of homeowner who prefers full agency over their property.

Having to choose between a few set colors you can paint the exterior of your home or being told where you are allowed to park your car would ruffle the feathers of some individuals.

More: How to buy a condo

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What happens if you break a deed restriction?

It’s best to know about any restrictions before you commit to a home. Ask your real estate agent to pull any restrictions that may have been indicated in previous listings.

Deed restrictions may also come up in a title search of the property, so you can order one yourself or talk to a lender about that stage of the process. This may not be part of a title company’s standard services, so be sure to ask for that to be included.

If you know there’s an HOA overseeing the neighborhood, read through the bylaws thoroughly for any restrictions that may pose an issue.

Research is key; unfortunately, not knowing isn’t going to get you off on a deed restriction violation.

These restrictions can only be enforced by the entity that wrote them into the deed. You may simply be asked to fix the issue or face a fine. It’s rare, but depending on the severity of the violation the dispute could escalate to a lawsuit and a court injunction.

How to change your deed restrictions

Depending on the age and origin of the deed restriction, you may not have to do anything at all.

For example, the individual or organization responsible for enforcing the rule may be long gone. Or the rule may have become obviously unlawful in the time since its creation — for example, a rule declaring what kind of people are allowed to occupy the home.

If you do have to challenge the rule, first try issuing a direct appeal to the person or group who originally put the restriction on your property, asking them to lift it.

In the case of an HOA, you could ask for a vote on removing the restriction. If it’s your municipality that’s imposing the rule, you could bring the issue to your local city council.

If they won’t budge, you may need to go to court. A lawyer could help you argue that the restriction is unlawful, unenforceable or unfair — but you’ll have to accept that the rule may stand at the end of the day.

More: What does a real estate attorney do?