How to Abolish Deed Restrictions

by Sheila
(Port Clinton, Ottawa County Ohio)

Visitor Question: In 1968 the subdivision that I live in filed a Declaration of Restrictions. In the restrictions it states, "Restrictions shall be automatically extended for successive periods of ten years unless an instrument signed by the owners of a majority of the lots, agreeing to abolish or amend said restrictions."

Most of the homeowners want to abolish these restrictions. Where do we start? We are located in Ottawa County Ohio and there are 42 lots in our subdivision.

Thank you for your time.

Sheila

Editors Reply: Sheila, the best place to start would be to consult an attorney licensed to practice in Ohio. Unlike some situations our visitors are asking about, yours should be relatively simple to resolve since your covenants themselves describe a process for abandoning restrictions.

With any luck you will have an attorney living in your midst, or possibly someone's son or daughter, brother or sister is an attorney.

The only question here will be making sure that the "instrument" is appropriate and would stand up in court if it were to be tested for some reason. You also want an "instrument" that future buyers and their title companies can understand; in other words you want plain English.

The second small challenge will be making sure that the signatures are appropriate. For instance, if both husband and wife are listed as owners, it may be that both signatures will be required. If a lot is owned by a trust, as is common with older property owners, it is important to make that the signature collected is that of the official trustee of the trust. Names should be signed exactly correctly.

Note that the language requires signatures from the owners of a majority of the lots, which is not the same thing as the majority of the owners. To illustrate simplistically, if you have a ten-lot subdivision and one person owns six lots, you do not have signatures of the owners of a majority of the lots if the person who owns six lots refuses to sign, even though four of five owners of lots have signed. Read that through a few times if need be!

It should be an easy and relatively inexpensive task for the attorney to draw up an appropriate "instrument." Then you and the attorney can consult about whether further services are needed because ownership is complex, in other words because of you have several situations where there are multiple owners or where ownership is obscured by a trust, LLC, or other corporation. In many situations, that second layer of monitoring of the signatures will be something that can safely be left to mere mortals and not require attorney supervision.

Lastly, make sure that you and your neighbors are content with abolishing all restrictions. Sometimes one out of ten continues to make good sense, so be careful not to extinguish something you would like to keep.

To make this decision be sure to take into account the current status of regulation in your city or county. If things you would want to prohibit are against other laws and ordinances, you are safe in ridding yourselves of deed restrictions. If not, perhaps you should weigh the costs of abandoning your only flimsy protection against situations you would find intolerable.

We are not fans of regulation by deed restriction on this site, due to their lack of free enforcement by a public body. So we are rooting for you. But since your situation is as it is, make sure that you actually want to get rid of all restrictions. An attorney probably would advise that you could be selective.

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