It's common for people who own land to want to protect certain aspects of the properties in the short and long term. One way to accomplish this is to institute deed restrictions dictating what current and future owners can do to the land and any structures that may be on it. If you are considering using deed restrictions on your property, here are two important things you need to know to successfully implement them.
They Require an Enforcing Body
Anybody can institute deed restrictions on their property. The challenge, however, comes in enforcing the restrictions and preventing people who purchase the property from making prohibited changes. Because deed restrictions are considered contracts between private parties, the government will not step in to govern property usage like they would with zoning and other laws enacted by local, state, or federal agencies. To make these restrictions stick, you need other people who will monitor how the property is used and step in to stop owners from violating the deed terms.
There are a couple of ways you can accomplish this. The simplest is to have heirs or owners of neighboring properties keep tabs on subsequent owners and take action when needed. This isn't reliable, though, as the family line may die off or neighbors may move away or just fail to enforce the restrictions.
A better option is to create or join an organization (e.g. homeowner's association) that handles this type of thing as a matter of course. While this is likely to be longer lasting and more effective than relying on family and neighbors, be aware that organizations can go defunct. Many deed restrictions from the turn of the century are unenforceable because the governing body that oversaw them doesn't exist anymore, so it's essential you choose an organization that's stable enough to be around for awhile.
Laws Trump Deed Restrictions
The other important thing to know about deed restrictions is local, state, and federal law override them. The exact effect the laws have on your restrictions, however, depends on what they are. If a deed restriction is similar in nature to a law, the stricter of the two will be enforced. For instance, if you forbid future owners from putting certain types of businesses on the land but local zoning laws doesn't allow any commercial activity, the local laws take precedence. If the deed restriction is stricter, it will supersede the law.
Additionally, deed restrictions cannot include anything illegal. You cannot write a restriction discriminating against people based on ethnic background or religion because that is against federal laws, for example. Any illegal deed restrictions will typically be removed when challenged in court.
For more information about deed restrictions or help writing and implementing yours, contact a real estate attorney like John M. Ogden.
