Developers plan approval

by Tamra
(Ky)

Visitor Question: Can a developer enforce restrictions that aren't deed recorded when approving a home plan for building?

Editors Reply: We are sorry we missed your question when it came in. Let's discuss this.

The puzzle for us in answering this question is that we do not know, and maybe you do not know, what gives the developer the right to approve a home plan in the first place. Usually in the U.S. there would be no such right unless one of these two conditions exist: (a) there are deed restrictions specifically giving the developer a right of plan review, or (b) the recorded subdivision plat includes what amounts to restrictions.

In situation (a), depending on the wording of the deed restriction, the developer might have full discretion to approve or disapprove specifics of your proposed home plan, regardless of whether those specifics are otherwise covered in the deed restriction.

For example, your deed restriction might not say that homes cannot be any taller than two stories, but if the covenants say that the developer may review and must approve any house plans before they are constructed, the developer is still within his or her rights to limit the height of your home.

But if there are no deed restrictions giving the developer the right to review plans, you might have situation (b), in which the subdivision plat itself enshrines into law what you might consider a restriction. For instance, commonly the plats indicate required setbacks, building lines, street dedications, and easements.

However, something that is on the plat and its accompanying documents typically is enforced by the local government, not the developer. Check with your city to see if there is anything in the subdivision approval that addresses the restriction that you are concerned about. (If you live in an "unincorporated area" that is not within any city limits, you will check with your county instead.)

So there are two things to learn. First, make sure you understand why the developer is reviewing your plans in the first place. If it is a typical old-style subdivision before such a proliferation of deed restrictions and gated communities started occurring, usually the developer would have no such power. So check on where this power is derived from. (It is also conceivable that there is a local or state law giving developers this right; if so, your city or county government will be able to tell you that.)

Second, in addition to deed restrictions, check into the conditions of the subdivision approval.

To be sure that you have seen all of the deed restrictions, check on what is recorded at your county. You seem to have done this, but if not, start there. Then proceed to your city or county government planning office that handles the subdivision process. Ask them about what exactly was approved.

To be fair, subdivision plats also are recorded documents. We just find that in general, the people who actually work with planning issues are more adept at finding the underlying conditions of a subdivision approval than the county's recorder of deeds. Your results might vary of course, depending on individuals' experience and competence.

So don't let a developer bully you; understand what powers a developer has and when he or she is only trying to persuade you to do something the way they like.

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