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  #1  
Old 04-13-2008, 07:48 PM
Xema Xema is offline
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Enforcement of deed restrictions

I've been checking the deeds for some houses in my neighborhood (sort of a hobby of mine). In a few cases, deeds include restrictions; examples include:
- no structure may be erected having a value less than $10,000
- no unregistered vehicle may be parked on the property

It appears that the owners of these properties are complying with these restrictions, so my question is theoretical. Suppose at some future date a future owner violates such deed restrictions - how would they be enforced? Would the township take some sort of action if notified? Would a neighbor have to initiate a lawsuit?
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  #2  
Old 04-13-2008, 08:15 PM
MichaelQReilly MichaelQReilly is offline
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Quote:
Originally Posted by Xema
I've been checking the deeds for some houses in my neighborhood (sort of a hobby of mine). In a few cases, deeds include restrictions; examples include:
- no structure may be erected having a value less than $10,000
- no unregistered vehicle may be parked on the property

It appears that the owners of these properties are complying with these restrictions, so my question is theoretical. Suppose at some future date a future owner violates such deed restrictions - how would they be enforced? Would the township take some sort of action if notified? Would a neighbor have to initiate a lawsuit?
The answer to this question is surprisingly complicated and depends on quite a few things. Chances are that the covenants probably are enforceable. As to who can enforce them, its often a home owner's association but it can be neighbors too.
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Old 04-13-2008, 10:02 PM
t-bonham@scc.net t-bonham@scc.net is offline
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Deed restrictions or covenants are generally enforceable, except where they involve discrimination against a legally 'suspect class' or otherwise unreasonably restrict civic activity.

Thus prohibitions against selling or renting to blacks or jews are nearly always unenforceable nowadays; if fact, trying to enforce them would probably get you in trouble.

And since participating in political elections is considered a civic duty, outright bans on political lawn signs are frequently overturned. But limits on lawn signs, like no larger than 3'x5' and only allowed for 30 days before the election, are often allowed. And bans on non-political signs, like commercial or advertising one, are often upheld.

Of the specific ones you mentioned, the requirement that any structure must be valued at > $10,000 might possibly be considered as targeting poor people, and so could be overturned -- that would depend on the court. Many courts might uphold that.

I have no idea how these are legally enforced. (Most are enforced by neighborhood peer pressure, without involving the legal system.) My guess is that they are considered a contract between the seller or the neighborhood association, so they would have to bring a suit for breach of contract to enforce them. Nut IANAL.

Last edited by t-bonham@scc.net; 04-13-2008 at 10:04 PM..
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Old 04-13-2008, 10:05 PM
Xema Xema is offline
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Originally Posted by MichaelQReilly
As to who can enforce them, its often a home owner's association but it can be neighbors too.
If these were restrictions of a homeowner's association, I suspect the enforcement procedures would be reasonably straightforward and fully spelled out in the HOA agreement. But there's no HOA here - just some houses along a street.

In order to file a lawsuit, don't you need to show "standing" - that you have suffered damage? Would someone up the street be able to claim damage because a property owner had an unregistered car in his driveway - as do a couple of other folks on the street (none of whom has a deed with such a restriction)?
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  #5  
Old 04-13-2008, 10:10 PM
Polycarp Polycarp is offline
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Quote:
Originally Posted by MichaelQReilly
The answer to this question is surprisingly complicated and depends on quite a few things. Chances are that the covenants probably are enforceable. As to who can enforce them, its often a home owner's association but it can be neighbors too.
Key point, I think, is that you have to have "standing" to ask a court to enforce it.

If your HOA decides, in their great officiousness, that nobody should have an outdoor dog pen, but there's no law against it in your municipality, no neighbor has voiced a complaint about your dogs, and there's nothing in your deed or HOA agreement that could be reasonably construed as your having ceded a right to regulate what you put in your yard to the HOA, you can tell them to go pound salt. Likewise if your busybody neighbor finds your hydrangea bush outrageously tacky, and there are no rules about plantings that are legally enforceable, she's bsically out of luck. It needs to be something legally enforceable. You may want to act voluntarily to avoid the PITA aspects of a lawsuit on something that is legally enforceable, but the bottom line is, can X show a valid reason to take Y to court over some issue.

Now, let's assume that there are deed restrictions, as in the OP, and that someone is violating them. Herman Blucher, inveterate tinkerer with cars, just retired and has started up Blucher's House o'Junkers in his yard. This violates the deed restriction on unregistered cars. Do you have standing to take him to court?

The answer is, Maybe. Not yes, not no, but maybe. To have standing, you have to show that you have suffered a "legal injury". This does not mean, you got wounded or something -- but that his actions have in some way harmed you.

For example, it has lowered your property value. To prove this, you get an appraiser to tell you, in a formal letter of appraisal, what your house is worth, fair market value, (a) under the current conditions, and (b) under the assumption that Blucher's wrecks are removed and the property kept to municipal standards. The difference in the two figures is a valid loss -- what his maintaining his junkers has cost you in actual personal worth. Or you document in some way that having the junk cars there constitutes an "attractive nuisance" -- presenting a danger to your children, providing a breeding ground for feral cats (which you've photographed), etc. You have actually shown "legal injury" from his actions, and therefore have grounds to sue.

Now of course, if you have a HOA whose job it is to seek enforcement of deed restrictions on behalf of the neighborhood as a whole, and Blucher is covered by the HOA, then complaining to them would be the way to go -- they automatically would have standing, because all parties involved have previously consented, in the HOA agreement, to their having the right to enforce deed restrictions.

But that issue of standing is important. It requires that you have an objectively valid ground of complaint, something which actually has, or which has the strong potentiality to, work you a real harm. It protects against nuisance lawsuits from Mrs. Busybody, who believes that her personal tastes constitute Divine Law which all ought to follow. That's why I included the second paragraph, putting you in the place of the person facing such a nuisance complaint.
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  #6  
Old 04-13-2008, 10:17 PM
Polycarp Polycarp is offline
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Basically, what t-bonham describes are covenants that are "against public policy" -- a curiously nebulous phrase to try to define. I think I'll leave that definition to gfactor, bricker, or another SDMB jurisconsult.

And, of course, IANAL.
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  #7  
Old 04-14-2008, 07:36 AM
Billdo Billdo is offline
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This varies by jurisdiction, and this is not legal advice about whatever your particular situation may be, but many deed restrictions under the American received branch of the common law (in other words, what I learned in law school) fall within the legal category of "restrictive covenants." If a restrictive covenant is done right, it will "run with the land" (i.e. be binding on all subsequent purchasers of the property).

The key to restrictive covenants is that they have to be agreements between multiple property owners deriving their title from the same owner.

What that means is that if you have a single property and want to sell it to a purchaser, you can't just impose a restrictive covenant on your purchaser (or to be technical you can get your purchaser to agree to anything, but the restriction will not run with the land).

What you can do is impose a restrictive covenant when you sell part of your land or split your land among multiple purchasers. In practical terms, what this means is that when somebody takes a large tract of land and subdivides it for a residential development, the developer will put a restrictive covenant on all of the subdivided lots that it sells to individuals. (As a side note, when an area has a homeowners association, that is imposed by restrictive covenant by the developer). When that happens, the covenant is for the mutual benefit of all of the purchasers to protect the character of the development (or at least the developer's conception of what the character of the development should be).

All this leads to the answer to the question of who may enforce a restrictive covenant (i.e. who has standing). The covenant is an agreement between the original owner of the tract of land and all of the subsequent owners who purchased parts of the tract. As such, the persons who are aggrieved when a restrictive covenant is violated are the people who have properties that are also affected by covenants ultimately deriving from the same seller. Most typically, that will be other homeowners within the same development having the same (or similar) restrictive covenants on their lots.

So, the short answer, is that residential restrictive covenants can usually only be enforced by neighbors in the same development, and not any governmental agency.

(By the way, to quibble with Polycarp, if your neighbor has a restrictive covenant you can enforce, you are legally injured by any action in violation of that covenant and should be able to get an injunction to stop the violation, whether or not you suffer any financial injury. If you are not a person who has the legal right to enforce that particular restrictive covenant, you cannot sue no matter the amount of financial loss that your offending neighbor causes.)

Last edited by Billdo; 04-14-2008 at 07:39 AM.. Reason: added quibble
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  #8  
Old 04-14-2008, 07:58 AM
MichaelQReilly MichaelQReilly is offline
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Quote:
Originally Posted by Billdo
This varies by jurisdiction, and this is not legal advice about whatever your particular situation may be, but many deed restrictions under the American received branch of the common law (in other words, what I learned in law school) fall within the legal category of "restrictive covenants." If a restrictive covenant is done right, it will "run with the land" (i.e. be binding on all subsequent purchasers of the property).

The key to restrictive covenants is that they have to be agreements between multiple property owners deriving their title from the same owner.

What that means is that if you have a single property and want to sell it to a purchaser, you can't just impose a restrictive covenant on your purchaser (or to be technical you can get your purchaser to agree to anything, but the restriction will not run with the land).

What you can do is impose a restrictive covenant when you sell part of your land or split your land among multiple purchasers. In practical terms, what this means is that when somebody takes a large tract of land and subdivides it for a residential development, the developer will put a restrictive covenant on all of the subdivided lots that it sells to individuals. (As a side note, when an area has a homeowners association, that is imposed by restrictive covenant by the developer). When that happens, the covenant is for the mutual benefit of all of the purchasers to protect the character of the development (or at least the developer's conception of what the character of the development should be).

All this leads to the answer to the question of who may enforce a restrictive covenant (i.e. who has standing). The covenant is an agreement between the original owner of the tract of land and all of the subsequent owners who purchased parts of the tract. As such, the persons who are aggrieved when a restrictive covenant is violated are the people who have properties that are also affected by covenants ultimately deriving from the same seller. Most typically, that will be other homeowners within the same development having the same (or similar) restrictive covenants on their lots.

So, the short answer, is that residential restrictive covenants can usually only be enforced by neighbors in the same development, and not any governmental agency.

(By the way, to quibble with Polycarp, if your neighbor has a restrictive covenant you can enforce, you are legally injured by any action in violation of that covenant and should be able to get an injunction to stop the violation, whether or not you suffer any financial injury. If you are not a person who has the legal right to enforce that particular restrictive covenant, you cannot sue no matter the amount of financial loss that your offending neighbor causes.)
Yup, this is what I was referring to (and what I would have said I felt like typing a longer answer ).
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Old 04-14-2008, 08:04 AM
Billdo Billdo is offline
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Quote:
Originally Posted by MichaelQReilly
Yup, this is what I was referring to (and what I would have said I felt like typing a longer answer ).
I'm pleased to be your scribe.
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  #10  
Old 04-14-2008, 11:02 AM
Gfactor Gfactor is offline
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Here are some good cases on standing to enforce restrictive covenants in deeds:

http://caselaw.findlaw.com/data2/new...2/shaff144.pdf

http://caselaw.lp.findlaw.com/script...99-684&invol=2

http://www.icle.org/mlo/UNPUBLISHED/20080226_275937.pdf
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  #11  
Old 04-14-2008, 11:16 PM
robby robby is offline
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Houston is unusual in that it is the only major American city that has no formal zoning.

The way they accomplish the same aims (e.g. prevent your neighbor from tearing down his house and replacing it with a Burger King) is with deed restrictions.

Many neighborhoods enforce these vigorously, because if they fail to enforce the deed restrictions, the neighborhood can quickly go down the tubes.

Deed restrictions can be used to collect money for a mandatory homeowner's association, too.

One common deed restriction is the prohibition of garage sales. (They give potential thieves an excuse to case the neighborhood.) My grandfather runs a homeowner's association, and he has to stop a garage sale about once a week.

He generally gets the call that a prohibited garage sale is going on, drives over, and informs the resident that they have 15 minutes to close up shop. If they refuse, it rapidly gets expensive for the violator. The HOA has an attorney on retainer, and it escalates from there. If the homeowner is intransigent, the HOA will sue them in court, no exceptions.
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Old 04-14-2008, 11:27 PM
Bearflag70 Bearflag70 is offline
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If the HOA won't enforce CC&Rs, and your property value is damaged, do you sue the HOA, your offensive neighbor, or both?
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Old 04-15-2008, 12:16 AM
Randy Seltzer Randy Seltzer is offline
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Ask the law student who just finished this unit a couple of weeks ago...

Quibble with Billdo: strict horizontal privity (deriving title from the same owner) is not required for the covenant to run with the land in the context of residential subdivisions thanks to the doctrine of implied reciprocal negative easements.

What is needed, you ask? Well, Mr. Bar Examiner, let me tell you the five requirements:
  1. The covenant must be in writing (usually the deed).
  2. The party to be bound must have notice (usually taken care of by step 1).
  3. The grantor must intend for both the burden and the benefit of the covenant to run with the land. (e.g. the "burden" of not being able to build a glue factory in your front yard, and the "benefit" of not having a glue factory next door.)
  4. The restricton "touches and concerns" both the dominant and servient estates (this will always be met in housing restrictions).
  5. There is both horizontal and vertical privity of estate (taken care of by the aforementioned doctrine of implied reciprocal negative easements (and often not needed anyway to enforce equitable servitudes, which is what residential deeds restrictions are)).
In English, this means that all the other property owners in the subdivision get the benefit of those housing restrictions. They are enforced by neighbors suing each other. Generally, neighbors elect a smaller body to police/enforce the restrictions and sue on their behalf. If your neighbor is violating his deeds restriction, and your elected homeowners association isn't doing anything about it, you can sue the neighbor yourself (unless the deeds scheme specifically negotiates this right away from you) AND possibly sue the homes association (depending on the way it's organized) in a separate cause of action for failing to do its job. (Bearflag's hypo).

Also agree with Billdo that you have standing as a matter of law if a covenant is violated; you don't have to show damages. If you win your suit, your remedy will generally be an injunction (i.e. neighbor has to tear down his glue factory) instead of damages (i.e. neighbor has to pay you the decrease in value of your property).

Note: Property law is highly jurisdictional, and IANAL.
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Old 04-15-2008, 08:56 AM
MichaelQReilly MichaelQReilly is offline
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Quote:
Originally Posted by Randy Seltzer
Quibble with Billdo: strict horizontal privity (deriving title from the same owner) is not required for the covenant to run with the land in the context of residential subdivisions thanks to the doctrine of implied reciprocal negative easements.

What is needed, you ask? Well, Mr. Bar Examiner, let me tell you the five requirements:
  1. The covenant must be in writing (usually the deed).
  2. The party to be bound must have notice (usually taken care of by step 1).
  3. The grantor must intend for both the burden and the benefit of the covenant to run with the land. (e.g. the "burden" of not being able to build a glue factory in your front yard, and the "benefit" of not having a glue factory next door.)
  4. The restricton "touches and concerns" both the dominant and servient estates (this will always be met in housing restrictions).
  5. There is both horizontal and vertical privity of estate (taken care of by the aforementioned doctrine of implied reciprocal negative easements (and often not needed anyway to enforce equitable servitudes, which is what residential deeds restrictions are)).
In English, this means that all the other property owners in the subdivision get the benefit of those housing restrictions. They are enforced by neighbors suing each other. Generally, neighbors elect a smaller body to police/enforce the restrictions and sue on their behalf. If your neighbor is violating his deeds restriction, and your elected homeowners association isn't doing anything about it, you can sue the neighbor yourself (unless the deeds scheme specifically negotiates this right away from you) AND possibly sue the homes association (depending on the way it's organized) in a separate cause of action for failing to do its job. (Bearflag's hypo).

Also agree with Billdo that you have standing as a matter of law if a covenant is violated; you don't have to show damages. If you win your suit, your remedy will generally be an injunction (i.e. neighbor has to tear down his glue factory) instead of damages (i.e. neighbor has to pay you the decrease in value of your property).

Note: Property law is highly jurisdictional, and IANAL.
All of what you say is true. But, the OP's situation, where the covenants only show up here and there, seems to indicate agreements between individual parties and not a scheme by a developer. In which case, the standing issue becomes trickier.
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Old 04-15-2008, 11:26 AM
TJVM TJVM is offline
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the OP's situation, where the covenants only show up here and there, seems to indicate agreements between individual parties and not a scheme by a developer
I'm guessing that the OP lives in an older neighborhood, where restrictive covenants were often imposed on an ad hoc basis, one lot at a time. In those situations, questions often arises as to how long the restriction was supposed to last (binding on the current purchaser, or future purchasers as well?) and who can enforce them (the person who imposed the restriction, or neighbors as well?) That's when you have to get into the analysis that Randy Seltzer describes.

In my experience, modern subdivisions (from the last 30 or 40 years) usually have restrictive covenants that expressly state who can enforce them, typically the HOA, or at their option, other homeowners in the subdivision. In that case, it's pretty clear that homeowners can enforce the restrictions on each other by filing suit.
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Old 04-15-2008, 01:02 PM
MichaelQReilly MichaelQReilly is offline
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Quote:
Originally Posted by TJVM
I'm guessing that the OP lives in an older neighborhood, where restrictive covenants were often imposed on an ad hoc basis, one lot at a time. In those situations, questions often arises as to how long the restriction was supposed to last (binding on the current purchaser, or future purchasers as well?) and who can enforce them (the person who imposed the restriction, or neighbors as well?) That's when you have to get into the analysis that Randy Seltzer describes.

In my experience, modern subdivisions (from the last 30 or 40 years) usually have restrictive covenants that expressly state who can enforce them, typically the HOA, or at their option, other homeowners in the subdivision. In that case, it's pretty clear that homeowners can enforce the restrictions on each other by filing suit.
Right, we also have to consider whether the OP's neighborhood has changed to the point that the purpose of the restrictions is relevant (although it sounds like they would be if the neighborhood is still residential).
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