Restriction may prohibit son from building house

by Jim
(Maine)

Visitor Question: My question deals with a restriction which apparently will prohibit my son from having a house built on my property. My wife and I bought a 40 plus acre property some 35 years ago. This property had a house and several outbuildings on it which were used at one time as both a working farm as well as a summer camp. Our question deals with the fact that we would like to give our son and his family a plot of this ground to build a house- we have the feeling that this is going to be turned down because of a deed restriction (nothing to do with lot size) that was established by the original owners.

Not being familiar with what type of restriction may come into play, I am just wondering what you think the possibilities may be and if there would be any way to circumvent those--for example why couldn't I just build a house on it without seeking a zoning change? - just like building an out building or a barn etc. Thank you!

Editors Reply: You seem to be asking about both deed restrictions and zoning; we will try to answer the question both ways.

Just to be clear, a deed restriction is a private agreement placed on a deed (or a longer document referred to in the deed) by a previous owner of the property. Zoning is imposed by a government and enforceable by the government.

It is easier--and free!--to figure out the situation with regard to land use zoning. Just ask your municipality (if you are located in one) or your county, if you are not inside the city limits of any village, town, or city, whether there is a zoning ordinance that pertains to this property. You can do this much by phone.

At the same time, also ask if there is a local subdivision regulation, or whether how to divide land is regulated by state law only.

If there is a zoning law in effect, which you seem to imply there is, then you can ask about requirements of the zoning district where your property is located. This will include the minimum lot size, as you know, and other things such as the required setback from the property line.

Many residential zoning districts will permit only one primary residence on a lot, for instance. But if you are going to sell part of the land to your son (we know, you are going to give it, but in the eyes of the law, that is the same as selling it), you will have to create a separate lot anyway. That is where you will need to know and understand the procedure for subdivision in your location.

Sometimes subdivision of one lot into two lots is called a minor subdivision, or some similar name, and sometimes it is administrative. At other times it requires action from a planning commission or other public body.

Now we will assume that you understand your zoning and subdivision situation. Let's talk about the deed restriction. You seem to be suggesting that there is a deed restriction saying that only one primary residence can be built on the property.

We need to stress that this will remain in place, even if you legally subdivide the lot (unless the restriction is written in such a way as to allow one house per each subsequent division of the land).

To circumvent the restriction, you will need to talk with an attorney licensed in Maine to obtain guidance. Yes, restrictions can be removed, but the way they can be removed depends on both state law and the wording of the particular deed restriction, which is a private action susceptible to infinite variation.

Often removing the restriction would require obtaining the written agreement of the original property owner(s) or his or her heirs. Often this means all heirs. So you can see that if there are five living children of the previous owner, it could be harder than it looks. They may not be easy to find, they may not understand, and they may not agree.

On the bright side, you may know the original owner and heirs, and it could be easy, once you explain your goals. Since previously there was a summer camp, adding one single-family residence would not seem to violate the idea of keeping the property semi-rural, but then we can never predict how property owners will feel.

You ask also why you can't just build the home, much like you might build an outbuilding, without a zoning change. You are implying here that no building permit is necessary to build an outbuilding, which typically would not be the case if you live where there is a zoning ordinance. Almost always you have to show zoning compliance in order to obtain a building permit.

The consequences of building a home without a building permit, where one is required, can be pretty dire, including everything from having to demolish the house to going back later to obtain the building permit, only to find that an expensive alteration is needed.

So this is not a good option for you.

If indeed you have a deed restriction, get to work on preparing to meet with an attorney to find out how to get it lifted, and to start the process of determining whether the authors of the restriction or their heirs will do so. That is your first and most important step in resolving the situation.

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