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Should I worry about deed restrictions?

I’ve noticed a sign on a development off McGregor Boulevard in Fort Myers that says "Deed Restricted Community." What does that mean?

ANSWER:

Deed restrictions may be encountered and affect title to property in a number of different ways and types.

"Restrictions" means that the use of the property is limited in some way. The use of the property may be restricted by covenants, easements or zoning.

An easement gives another party a right to use someone else’s land for a special purpose (e.g., to lay utility pipes or to access a road).

Zoning is the exercise of the police power of a municipality in regulating or controlling the character and use of the property (e.g., single family, commercial and industrial zoning).

A covenant, often found in deeds, is a written promise to do something on the land (e.g., maintain a fence) or it may be a promise not to do something on the land (e.g., not to build a multi-family dwelling). Covenants can also arise by implication of law or from the conduct of the parties.

Deed restrictions limit the use of the property conveyed and have been in existence as a restriction tool for a very long time.

For a restriction to be legal, it must be reasonable and it must not violate public policy. Restrictions are often used to limit the types of buildings or how the land is used.

Restrictive covenants may be created in a number of ways.

One way is that the limitations on the use of the land may be expressly set forth in the deed.

Another way is that the restriction might be contained in a separate written instrument recorded in the public records or it might be found in a printed plan of a proposed development.

A third way is that restrictive covenants can come into existence by verbal representations which would bind the parties involved, for example, if an owner sells part of a subdivision tract and represents that the rest of the tract will have the same restrictions when he sells it.

A real estate agent may be able to explain some types of restrictions common to a particular area. However, it would generally be the buyer’s responsibility to determine the extent and nature and acceptability of any restrictions before closing.

This information is not intended as specific legal advice to anyone and is based upon facts that change from time to time. Individuals should seek legal counsel before acting upon any matter involving the law.

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