Just as the term implies, a deed restriction is a quite simply stated, a restriction included on the deed to your home. Read that sentence again. This restriction is a covenant that runs with the land until such time it expires or is otherwise removed. The plain definition of the word covenant is a binding promise in a written contract. A deed is a formal written document that transfers ownership of an asset from one owner to another. It is an acknowledgement of the transfer and a formal agreement of any terms and conditions contained within it between the seller of the asset and the buyer of the asset. It is in its most basic form, a written contract.
Contractual Obligations
A common complaint circulating on the internet is “HOAs should be illegal”. The people who say this, based on the first paragraph are really implying that they believe “contractual obligations should be illegal”. I’m sure people don’t rationally believe that contractual obligations should be illegal because imagine faithfully paying your electric bill and your utility company just decides “Sure, we received your payment, and thanks for that, but we’ve decided to just not supply you with electricity.” Not really the hallmark of a functioning society now is it?
The truth is we are surrounded by contractual obligations in our everyday lives, but nobody thinks of deed restrictions in the same way they feel pretty strongly about getting the electricity they paid for. Most people who are not attorneys, don’t enjoy spending their time learning the nuances of contract law and we don’t think you should either, so this article is to give you some basic knowledge to bring awareness to an often-overlooked issue.
These contractual obligations are typically put on the deed by the original developer who purchased a large tract of land and subdivided into smaller plots for sale. They wanted to protect their investment during construction so clearly, they didn’t want the first couple buyers to come in and go for a festive neon green paint theme. They also wanted subsequent buyers to purchase with the confidence that all their neighbors would be bound by the same guidelines. This establishes a baseline for community esthetics that would hopefully foster consistent property values and provides specific parameters for future use or restriction from use, of the property. These obligations, as mentioned earlier, “run with the land”, meaning once placed on the deed, they transfer with the property from owner to owner.
Are they legal?
It appears the only time a court will intervene on deed restrictions is if those restrictions are determined to be themselves, illegal. For example, any deed restriction found to violate federal regulations such as fair housing, anti-discrimination laws are usually unenforceable. Also, restrictions that violate zoning laws, local statutes, or create a public safety hazard are problematic. The restrictions also shouldn’t violate the Americans with Disabilities Act provisions for reasonable accommodations.
It’s important to remember, deed restrictions are contractual in nature and enforcement is done by the party as set forth in the restrictions. In deed restricted communities, this usually means the HOA or Condo Association. Enforcement is typically a civil matter that could escalate up to and include litigation.
Disclosure – It’s the law
It’s easy to say, “I wasn’t told” or “I wasn’t aware when I bought the house”. I can tell from experience, when I bought my first home, the excitement of my first jump into adulthood overshadowed the feeling of wanting to read all the fine print in my deed so you’re not alone. You’re human. But let’s not forget that you likely didn’t go through your home purchase alone – you likely had one or more real estate agents involved. Your real estate agent should make sure you are fully aware of what you are buying and in the State of Florida, it’s actually a requirement. According to Florida Statute 720.401, “A prospective parcel owner in a community must be presented a disclosure summary before executing the contract for sale.” See Florida Statute 720.401 here.
At least one of those real estate agents likely represents the seller of the property and if you only have a buyer’s agent, they should be looking out for your best interests and doing their due diligence on your behalf.
If all parties followed the rules, then it’s safe to assume that you were presented with full disclosure of any deed restrictions on a property you are purchasing. In private transfers, it’s always a great idea to seek counsel from a qualified real estate attorney.
What if I disagree with the Deed Restrictions?
There’s no real way to sugar coat this – The best way to deal with Deed Restrictions you don’t agree with is very simple – DON’T BUY THE HOUSE. It’s understandable especially in today’s economy to overlook a lot of details when you’re competing with so many buyers in a fast-paced environment. Take the time though to understand what you are buying because “I didn’t have time to review all restrictions because I was in a bidding war” is probably not a functional defense to a judge.
If you already purchased a home and find you can’t live withing the confines of the deed restrictions – what’s the path of least resistance – you guessed it, SELL THE HOUSE. Unless the restrictions are found to in some way violate some of the laws previously mentioned, fighting a deed restriction because you disagree with it can be a seriously expensive undertaking with no guarantee of outcome. That doesn’t mean you as a homeowner have necessarily waived all your rights because you have deed restrictions but, keep in mind, your argument will always have to overcome the fact that you, of your own free will, agreed contractually to be bound by the deed restrictions as a condition of purchase in the first place.
In Summary
Deed Restrictions are serious business, don’t ignore them. They bind the owners to abide by them and are difficult to get around. In future segments of this series, we’ll discuss the various publicly recorded governing documents that deed restrictions rely on to convey specific details. For this segment, our goal is to go over the fundamental concept of deed restrictions. If you are considering purchasing a home with deed restrictions or own one already, it may help to seek the opinion of a qualified real estate attorney to help understand your rights. Don’t just rely on a real estate agent to make sure you’re fully aware of your rights. While some agents will take the time to fully explain these items, others may simply hand you a stack of disclosures and ask for your signature.
Most HOA’s will assume you understand what deed restrictions you agreed to so looking to the HOA to have leniency or an understanding ear could prove to be a challenge. HOAs are not attorneys, nor are they customer service – they are in place to enforce deed restrictions so it’s key to understand what their role is to understand why you may not receive a response you were expecting to.
DCAS wants everyone to be able to fully enjoy their home. The first step is taking the time to find the home that meets your needs and expectations.
Disclaimer:
Marko Dowgal is a licensed Community Association Manager in the state of Florida. The preceding article and subjects discussed herein and in subsequent articles are not intended as specific legal advice and are subject to change based on the rules and regulations specific to these topics. Changes occur from time to time and our opinions may change based on updated information. For questions, please contact Dowgal Community Association Services. For legal advice, please contact a qualified attorney in your state.
