Can deed restriction limit land use

Visitor Question: Can a deed restriction require the use of a piece of property only for a public park? Shouldn't the owner of the property have some more choices than just one use? Is it even legal to restrict what is on the land?

Editors Reply: Yes, a deed restriction can and often does limit land use. Yes, deed restrictions are legal. We do not like this process, and instead would like to see publicly arrived at decisions, such as a zoning process. But that is another story.

It may seem on the surface to be quite restrictive to have only one permitted land use, but often owners of property want to see something that exists now, such as a park, continue to exist into the future. This is one way, and the only way in most places, that a property owner can exert that control far into the future.

Occasionally this type of restrictive covenant or deed restriction becomes a problem to the area, if the current owner is unwilling or unable to maintain the area as a decent park.

In that case, it becomes important for the community to help come up with a solution to make the restriction viable. You can even embrace this park as an amenity that many other people would like to have in their neighborhood. Perhaps you have to organize a community cleanup twice per year, once in the spring and once in the fall, or if there is lawn involved, you may have to organize a mowing crew.

If you are part of a subdivision, homeowners association, or other development that has this park, then you may be able to change the deed restriction. You would need an attorney to even investigate whether such a thing is possible. Often you need unanimous consent of the property owners, which becomes a difficult process if you have very many people involved.

However, if this is a stand-alone property owner, not an association of some sort, there is nothing that the neighboring property owners can do to override the deed restriction if the current property owner does not want it removed.

If the current property owner feels that the restriction is burdensome, he or she may be able to get it changed, but that requires an attorney well versed in the pertinent state law and also the practicalities of locating heirs that may have to be involved in the approval.

The fact that someone has to consult an attorney to begin to address this situation is one of the most important factors in our distaste for this method of land use control.

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