Sale to Town with Deed Restriction

by Carolyn
(NC)

Visitor Question: I am one of 27 owners of a condo complex near the beach. The complex owns a sizeable lot in front of the building which protects our view. If someone were to build on the lot (conceivably another condo complex) we would all lose our oceanfront view. The Town is in need of public parking. If we were to sell this lot to the Town with a deed restriction that it could only be used for parking (thus cars wouldn't block our view of the oceanfront), could the Town at some point, sell the lot to a developer who would build another condo complex thus blocking our view? Thank you.

Editors Reply: It is general practice around the country that governments must obey, and do assume they must obey, deed restrictions.

Notice what we did not say, however. We are not attorneys and have not researched anything that North Carolina law might say about that matter. We do know that North Carolina, like some other Southeastern states, has a marketable title act that extinguishes deed restrictions in a particular number of years and under certain circumstances, so please investigate that before you regard this as a permanent solution.

We also did not say that governments follow deed restrictions on property they acquire due to law, but rather to practice. So what we say below should be regarded as food for thought rather than the final word.

Yes, it seems to us that if you sold this common land to the Town with a deed restriction allowing only parking or green space, you would accomplish your goal of prohibiting further development between your complex and the beach.

If we were in your shoes, we would start negotiating with the Town. Instead of emphasizing the preservation of your view as the major point, you might want to try beach erosion or climate change to enlarge the sense of public purpose, if those topics would play well politically where you are.

Ask the Town specifically for their thoughts on the deed restriction method of accomplishing your goal. If you are respectful and careful, you might be able to get the Town attorney interested in doing the required research for you, without your having to incur the legal cost. Make it a joint project between your condo association and the Town.

In addition to or instead of deed restrictions, we have another couple of suggestions. The first is that you retain ownership of the property and execute a 99-year lease of the property to the Town. This has the advantage of allowing you, the property owner, to enforce the terms of the lease just as any landlord might do. You might even generate a revenue stream from the lease if you can negotiate that.

If you still own the property, of course you are not going to sell it to a developer for the purpose of developing more condos that would block your view. Yet the Town still accomplishes it goal of obtaining more parking. If they abuse the privilege or don't police the parking area appropriately, you are the landlord and you can enforce the terms of the lease. Obviously that lease should require the Town to police any people problems that arise from the parking lot, maintain the parking lot surface itself, and pick up the trash and sweep the parking lot on a regular basis.

If you want to be civic-minded, you can specify that the rent will be one dollar per year.

Of course now your condo association would have to continue to pay taxes, but there may be a method of deferring or cancelling that obligation, or at least obtaining enough of a lease payment to cover your property taxes.

The second idea is that instead of or in addition to deed restrictions, you should insist that the Town apply appropriate zoning to that portion of your land. This might become complicated since the development agreement at the time your condo was approved may cover exactly what can be done in this regard. However, despite complexity, the development agreement could be modified by the Town to give this protection.

The advantage of a zoning solution is that zoning is publicly enforceable, instead of the private enforcement through the courts that is required in the case of a dispute about adherence to a deed restriction.

These are some considerations for you as you think about how to achieve the desired goal of beachfront view preservation.

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