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against perpetuities has been modified by many states and repealed by a few.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.
Continue reading “Can a Homeowner Get Around a Deed Restriction?”
