Can deed restrictions limit use allowed by zoning?

by Joe
(Statesville, NC (USA))

Visitor Question:>/b> Can a deed restriction (i.e. only single family residences) limit the use allowed by zoning (i.e. cluster homes allowed)? I was under the impression that deed restrictions could define and "condition" the use, but they could not limit the use allowed by zoning. Thanks.

Editors' Reply: Of course you have to check your state laws, we are not attorneys, and all the usual caveats.

However, as a general rule deed restrictions are used to prohibit something that otherwise would be permitted, or that someone might consider doing.

So yes, definitely, in most places at most times, the deed restriction can be stricter than zoning.

The example you cite, allowing only single-family residences, is quite a common deed restriction actually.

There are more esoteric covenants, such as requiring that something always be used as a public market, that no living tree can ever be touched, that no garage can ever be built, or that the driveway never be widened.

Deed restrictions often regulate land use, just as zoning does. Usually if someone has bothered to place a covenant on the land, they want to be quite strict about some point.

Now, the question you didn't ask is whether the deed restriction can be overturned. That depends totally on your individual circumstances. In some states the heirs of the person who made the deed restriction may be able to unanimously agree to lift it.

In a few places, the deed restrictions automatically expire after a certain amount of time, but that would be the exception rather than the rule.

In yet other circumstances, all current property owners have to agree to lift the deed restriction. That might be easy if you have three property owners or a homeowners association involved, but very difficult if you have 50 property owners.

We're such huge fans of cluster housing too, that we hate to disappoint you.

However, the most realistic generalization we can make is that probably the deed restriction can be enforced, even if it is much more stringent than what zoning or other land use regulations would permit.

Of course, if you really want and need to pursue this matter, consult a local attorney who can advise you on both the laws and the legal precedents in your state.

It's possible you could go to court to overturn the restriction too, but usually on something as common as requiring only single-family homes, filing a lawsuit wouldn't be worth the expense and time.

Short of hiring an attorney, you also can research your state's laws on the Internet in almost every instance. If you have a little bit of background of reading such difficult material, you may able to verify whether our generalization is true in your locale.