A deed restriction is a provision in a deed that imposes certain living restrictions on a house or area within a subdivision. The restriction prohibits certain activities. For example, HOAs may use certain deed restrictions to prevent homeowners from making drastic changes that affect the look or style of neighborhood. HOAs commonly do this to ensure all properties within the subdivision are uniform in nature.
Deed restrictions are in writing and are agreed upon by the buyer of a property located within a certain subdivision or area that has an H.O.A. The restriction can recorded with the county in which the property is located in. A deed restriction is created by a private and imposes certain requirements on property owners. The deed does not expire even if a new buyer purchases the property.
The main reason deed restrictions exist is to force property owners in a given area with deed restrictions to maintain the character of the neighborhood. This is done to create uniformity of a neighborhood so that all properties are similar. The character of the neighborhood includes the type of property, its styles, the landscaping, and the process of property maintenance.
The idea of a deed restriction is that if there are restrictions and requirements, property owners will maximize the value of all property’s within the area where the deed restriction is being enforced.
A deed restriction might prevent property owners from using their home as their principal place of business, developing the property in a manner that goes against the goals of the H.O.A., or altering it in a way that alters the character of the property.
Typically deed restrictions last for about 30 years at which point the H.O.A. might be required depending on the jurisdiction to reinstitute the restriction.
Deed restrictions and covenants may appear to be the same however they should not be confused.
Termination of CC&R’s occurs during the following circumstances:
When the terms of the restriction expire
Cancellation by the enforcer
Government decision to intervene
Changing of conditions leading the government to remove restriction
Merger of ownership. In this scenario, the servient tenement becomes the dominant tenement.
Restrictions can be modified if the majority of the HOA members approve the proposed changes. Although the majority rule is typically applied, each H.O.A. has specific rules about voting procedures for modification of existing rules.
Deed restrictions also referred to as restrictive covenants limit how a property can be built and what can be built on land. Deed restrictions are not included in local building codes, rather they are privately enforced regulations. Deed restrictions typically contain the phrase “run with the land.” This term refers to the restriction being a part of the land and not the individual property owner who owns the property, which means as described above that the deed restriction remains indefinitely.
Example
Teresa and Dan recently purchased a property located in the Smallville community. The community is managed by the Smallville Homeowners Association. The association prevents certain actions such as altering the color of the paint for the property, changing the landscape, and others. Teresa and Dan are so excited about the property and want to renovate the property. They begin by changing the paint from the original beige color to blue. Is this a problem?
Yes. Owners of property in the community are prohibited from altering the color of the paint of the house. Their actions are a direct violation of the rules and regulations of the association. Although they may have temporarily gotten away with painting the house a different color, the association does have the right to forcibly require the owners to change the color back to its old color.
Example of CC&R Modification
The Giudicianos have lived in their property for over 7 years. Prior to living there, the homeowners’ association established a restriction against baluster decorations because baluster material is very heavy, thereby presenting a safety hazard to residents. New, lighter baluster material has been developed and the Giaudicianos claim the baluster restriction is outdated because of the lighter material, which they claim to be just as safe as other material. Initially the association rules against the baluster, but after proving that newer baluster’s are as light as other material, the association terminates the restriction.
