Can a Homeowner Get Around a Deed Restriction?

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As a traditional rule of law, other people shouldn’t be able to restrict our enjoyment and use of our property. This is why the rule against perpetuities prevented people from using deeds to control their properties after their deaths. According to this traditional rule, future generations should not have to live with contingencies placed on them by someone else’s “dead hand.”

It’s part of a broader principle: the rule against unreasonable restraints on alienation. After property is conveyed, the new owner should have full rights to it. A previous owner shouldn’t control how or to whom the new owner sells or rents it out. So, a court might nullify a deed restriction that forbids a homeowner from renting the house. Or the court might override a restriction on a gift house that the recipient can’t sell, alter, or share.

The original rule throughout most states was that no restraint on alienation would be upheld. Policies have changed. The rule against perpetuities has been modified by many states and repealed by a few. And today, the courts of most states typically leave reasonable restraints on alienation in place. What’s reasonable? That depends upon the facts and circumstances of a particular case.

Some deed restrictions are relatively minor: no keeping of exotic animals; certain colors of paint to preserve the character of the neighborhood; and so forth. No matter how minor or sweeping, a deed restriction is a binding contract. By signing the closing paperwork, the buyer agrees to abide by it.  

In some contexts, deed restrictions are generally considered reasonable across the board, and owners must accept them and live with them. Here are some of the most common examples.

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Creating Affordability: Deed-Restricted Workforce Housing

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Buying a home is a major challenge for a large segment of our population, and many people can’t afford homes near the workplaces that need them. With the travel and hospitality sectors reopening for business, the problem is growing more obvious. There’s a home affordability crisis calling for remedies.

Where there’s a will, there’s a way. Or several. Some counties and towns are addressing the issue by dropping their single-family-only zoning rules. Another response is a flurry of permissions for homeowners to build accessory dwelling units (a.k.a. “in-law cottages)” on their properties. 

In this article, we’ll explore yet another partial solution: dedicated workforce housing. Counties can create deed restrictions that allocate homes to employees of local businesses. A deed restriction, recorded with the property deed, can limiting the ways a home can be held or conveyed to someone else.

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Race Restrictions Still Appear on Deeds. There’s a Movement Afoot to Delete Them.

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Imagine the shock of reading your deed carefully and finding this rule: “This property shall not be resold, leased, rented or occupied except to or by persons of the Aryan race.” The Seattle-based Windermere Real Estate company doesn’t want to put up with such findings any more. This year, it’s working with its clients to use Washington state law to delete offensive deed language.

Under Washington law, an owner or resident of a property with an invidious deed restriction may have it stricken from the public records. This recent addition to the law makes it easier for Washingtonians who hit walls trying to remove discriminatory language from the title of their property.

In related news, Notarize, an online notary startup, now offers free notarizations to remove offensive covenants. Notarize calls it a matter of digital inclusion. The company’s website supplies assistance for Washingtonians, and will be expanding the service to Arizona, California, Colorado, Nevada, Idaho, and Oregon. In many other states, though, there is neither a process for removal not any pending legislation to deal with the matter.

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Deed Restrictions: How They Impact Homeowners and Communities

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Your home is your castle. But language in your deed just might keep you from installing a pool, constructing a basement apartment and renting it out, or using a non-neutral shade of paint on your exterior walls. Here is a brief explanation of deed restrictions and how they impact individual homeowners — and entire communities.

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Is a Hurtful Deed Restriction Lurking in Your Deed?

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Restrictive covenants are binding obligations not to do something with your property. These restrictions on real property are normally contained in a deed.

Restrictive covenants originated to keep industry out of residential areas. To this day, homeowners’ associations use deed restrictions in order to make condo owners adhere to established aesthetics or the property’s historical character.

They have also been used as grotesque tools of discrimination.

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What are Deed Restrictions?

For most people, buying a piece of land is a simple proposition: pay the money, file the deed, and the property is yours. Deed restrictions, though, make it clear that the world of real estate transactions is rarely so simple. Simply put, deed restrictions limit what you can and can’t do with your home. A common tool for homeowners associations to maintain uniformity in the neighborhood, deed restrictions can be added by parties such as the builder or developer, the homeowners association, or even a previous owner. Once a deed restriction is put in place, it can be very difficult to have it removed, and in many cases removal may be impossible.

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