Lifting deed restrictions on rural property

by Daniele
(Anderson Alabama)

Visitor Question: I want to buy a piece of property in metes and bounds in the country. There are now three tracts: (1) 32 acres of woods, (2) 12 acres cleared with a barn , and (3) 1 acre with a house. These are to be purchased all together.

I have just learned the previous owner restricted the deed with no pigs, no chickens, no timber to be cut and no building to be erected on a specific area. I went to the previous owner to see if he would lift these and he said no. Is there any way to have them removed anyway?

Editors Reply: Probably not, we're afraid.

A deed restriction is imposed by an owner and can only be lifted through actions that are described either in the document that created the restriction, or in local or more frequently state law.

You could check with an attorney in Alabama to see if there is any time limitation on the amount of time that a deed restriction remains valid. In many states, a deed restriction is valid in perpetuity or until very stringent conditions are met (such as every single property owner in a subdivision agreeing to the change, for example).

Most states now have their statutes online, so you might be able to do the research yourself to see if state law addresses this issue.

The most common situation is that state law allows the deed restriction to remain in place unless the person creating the restriction wants to lift it. Since you say you approached the current owner, whom you say created this provision, you probably do not have any recourse.

In this case, since the person who created the situation is living and known to you, your best bet would be to try to change the course of the negotiation. You could offer more money to see if money talks in this particular situation.

You can try to figure out why they wanted the deed restriction. For instance, did they want to protect beloved neighbors from what some might consider to be an aggravation? Did they think that chickens on the site would change the soil conditions in a negative way? Were they just environmentalists who didn't want to see timber cut? Did the current owner's parents have these particular opinions and preferences, and the owner is just being loyal to a family memory?

For instance, some farm families just think pigs are "dirty" animals and don't like to see them on the property. The sum of these conditions makes it seem as though the current owner is a purist of some sort on what proper use of agricultural land may be.

If you can learn the motivation behind the restriction, you will be in a much better position to try to negotiate a satisfactory deal.

Your situation is unusual in that often prospective buyers cannot locate and talk with the people who created the restrictive covenant, either because the original author is long deceased or no longer able to talk with buyers.

Although it won't be the answer you want to hear from us, our bet is that you will be unable to reach an agreement with this property owner that will allow you to either live with the restriction or convince this owner to lift it entirely. But we wish you the best of luck in trying to do so.

For the rest of our visitors, by the way, "metes and bounds" is simply a system of writing a legal description of a property that isn't legally subdivided. It is common in rural areas and also in larger tracts within an urban area that have never been divided. But that factor is irrelevant to the answer to the question.

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