Opposition to Deed Restrictions

Last Reviewed: June 17, 2024

Visitor Question: I'm against deed restriction rules. Because I don't believe people should be forced to do things around their home with threats of liens or summons from the HOA (homeowners association) board. People should maintain their home and property because they enjoy living in beautiful areas not because they are threatened by the HOA board.

Editors Reply: Thank you for sending this comment. We agree that an intrinsic motivation from property owners to keep up their properties is the best way of assuring a good community.

HOA boards sometimes can get overly zealous about enforcing rules. We are hearing of many instances where deed restrictions in a master deed for a condominium development are much too numerous for buyers to absorb or even read. We think that the rules, which are expressed in deed restrictions, should be as few and as simple as possible in order to maintain the character of the individual town homes, condos, or single-family homes, and the common ground.

Simple, short, direct master deeds that people are actually likely to read when they buy a property can be a good tool to educating new residents about expected standards of upkeep and conduct.

We suspect our visitor who sent this comment would not agree, but our thought is that some type of written statement is needed because there is so little agreement these days about appropriate maintenance (not to mention so little understanding of the potential negative impacts of external alterations that an owner might make in the name of self-expression).

Elsewhere on the site you can see that we are not big fans of deed restrictions as a general means of governing land use or even urban design.

Yet written design guidelines are appropriate in many situations where preserving consistency of setbacks, building height, materials, and so forth is important to preserving value for the development and for the broader community. But in most situations in the U.S., design guidelines in newer, non-historic developments are enforced by the HOA board.

If you accept our viewpoint that voluntary compliance is unlikely to be 100 percent successful, the alternative is regulation by the local government in the form of required approvals of external alterations by an architectural review board.

Architectural review at the municipal scale arguably could be more fair, impartial, and educated than review by an HOA board, which may after all base some decisions on popularity of the resident in question and others on personal biases that reflect lack of design education and sophistication.

Maintaining a quality architectural review board process and outcome is a challenge too, but at least with a governmental process, there is the potential for public scrutiny, especially where meetings are subject to a sunshine law.

There will be one major objection to substituting a community-wide architectural review board for deed restrictions enforced by an HOA board in matters of architectural alteration. That objection is that such a process would narrow the scope of rules, focusing just on exterior modifications to buildings.

But in our minds, this is mostly a good thing. Too many developments and HOA boards have gone overboard on regulating trivial matters of behavior; we are thinking here of the regulations about when you can put out flags, the color and type of mailbox you can have, and what you can put on your patio.

In fact, we like variation in what people choose as a mailbox. Too much sameness is, well, boring. If the overall architecture is strong, it can withstand small mistakes in the details that people select. Even if someone paints the front door purple, and someone else puts out their Notre Dame flag, strong landscape design and solid architecture will prevail. Everything does not have to be perfect to have an excellent community.

Of course, herein lies the problem: in many cases, the architecture and landscape design is mediocre at best. But we don't think that deed restrictions should be used as a crutch to compensate for cookie-cutter design in the first place.

As we have pointed out elsewhere with regard to using deed restrictions instead of zoning to limit land use, it is best to have a publicly enforceable mechanism that a local government can pursue, as opposed to deed restrictions requiring private civil lawsuit if an HOA is unable to obtain compliance through fines and threats.

Applying this same logic, a public architectural review board, judging on the basis of well-written design standards, should be superior to using the HOA board to enforce design rules. Also generally applicable community-wide laws concerning noise, nuisances, and when the trash cans can be in the front yard are preferable to deed restrictions for controlling behavior, in our opinion.

That's our two cents about opposition to deed restrictions. Yes, a public body empowered to review architectural changes, whether in specific districts or the entire city, would better than a system of deed restrictions enforced by an HOA board. In the meantime, many readers will be stuck with an arbitrary HOA board.

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