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What to Know About Building a Home: Deed Restriction

by | Oct 31, 2019 | New Construction

You’ve found it – the perfect lot to build your dream home on. However, your building plans can potentially be foiled by deed restrictions that are years old. These restrictions can include anything such as limiting the number of bedrooms you can build, to the type of vehicle you keep in your driveway. Let’s take a closer look at what deed restrictions are all about.

Finding out about deed restrictions

Deed restrictions can also be referred to as “restrictive covenants”. These covenants are contained within the deed and restrict how a piece of Real Estate can be used. There are usually community zoning regulations in place that limit what can be built on land, but developers are able to include restrictions not covered by these regulations. In fact, there does not even have to be an HOA in place for the deed to include a specific restriction.

In order to identify these restrictions, it is important to read the current deed carefully. In addition, these regulations should turn up during a title search. These rules are attached to the land, so, whether they were put in place 100 years ago or 20 years ago, they still apply.

Deed restrictions vs. HOA rules

A Homeowners Association runs independently as a community organization. Any rules made by a HOA can be reversed if all the members in the community object.

However, deed restrictions would have to be invalidated by judicial ruling. And your worst-case scenario is that there are both HOA rulings and deed restrictions on the property.

Type of deed restrictions

These restraints do not stop at construction. They can even affect what color you paint your home or restrict rental properties. With the rising popularity of Airbnb and VRBO, many restrictions are being placed on the rental period and nightly rentals.

Other restrictions include, but are not limited to:

  • Number of bedrooms
  • Building height
  • Number of vehicles in the driveway
  • Type of fencing
  • Type and number of trees allowed on the property
  • Style and color of construction materials
  • Pools, sheds, detached garages may be forbidden
  • Using your home as a place for business
  • Types of animals allowed

These restrictions are put into place to avoid obstructing views, to avoid sewer and septic tanks from being over capacitated, and mostly to keep the community clean and uniform.

Who enforces deed restrictions?

The person who originally put the restriction into place is typically the one who enforces it. Most likely this will be a developer, builder, or the local government. In most cases, a covenant was made so long ago that there is no ruling entity left to enforce it. Your real estate agent and title company should be able to determine the ruling body and if they still exist.

Changing a deed restriction

Your very first step will be to visit your county courthouse to obtain a copy of the covenant. Check to see if there is an expiration date, or provisions for changing the restriction.

The best route would be to ask permission to violate the covenant. This is easier said than done, but if the governing body is your HOA it may not be so hard to do. By getting permission from your neighbors and presenting the request to your HOA with this support, they may be persuaded to grant you the modification.

If you need to request the restriction be changed on a judicial level, your state may require you to follow certain steps in order to do so. Check with your local officials for these instructions.

Make sure you research deed restrictions fully before buying a piece of property. It may not be worth the hassle and there could be a piece of land just as good around the corner.

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