So this is a question that a client posed to me a couple years ago and I couldn't necessarily nail down an answer. Now that I've joined here perhaps you can shed some light.
Fictitious Scenario:
I own a large tract of land. I create a subdivision on said land. When creating the deeds for the newly created parcels I add in a deed restriction. One that I have seen in a deed is no dogs of a certain breed. Let's say Chow. 10 years down the road I drive by and see a man in his yard playing with his friendly Chow. But alas, this was a deed restriction! How dare he! He can't have that! Didn't he read his deed? Call the police! Oh wait, they won't care will they? Maybe the building inspector? But is this truly an issue that they would handle? It has nothing to do with zoning and it's not in violation of any town code...
So the question is, who enforces deed restrictions? If a land owner violates a deed restriction who resolves the issue?
This came up at a planning board meeting where a disgruntled land owner wanted assurance that he could call someone if the 25' buffer along his property line was disturbed. In that instance, the building inspector could possibly issue a stop work order and alert the current owner to the restriction, but even if he continues to cut or dig, is a deed restriction violation an offense that can be prosecuted? Will he get a fine? Will he be arrested? I assume he could be sued... But in the case of a dog breed restriction, who would sue him?
How can deed restrictions be enforced?
By the homeowner's association. They are normally included in the language in the deed restrictions. If not, then lawyer up because it means a civil suit.
But who sues? In a case of a dog breed, who would sue? Would I, as the creator of the restriction? How about the guy a mile down the road who caught this dog owner oogling his wife at the bar last week? Sure, he has no standing to sue but a violation is a violation? Who initiates? Some deed restrictions seem weak at best...
A previous boss created a subdivision with similar restrictions (that's where I got the dog breed issue). Another was "no mobile homes". That one should be caught by the building inspector prior to issuance of a certificate of occupancy... But does the building inspector really read every deed that may cross his desk? In a small town east of nowhere (right around the corner from my house) a deed isn't required to be submitted with a building permit. So who's to stop a homeowner building a house smaller than what's allowed by deed restriction (another one that I've seen)?
A buffer shown on an approved subdivision plat would most likely be enforced by the governing municipality. Usually, the enforcement of special conditions falls to a Homeowner's Association (HOA). If the deed does not specify who the enforcer will be, the Grantor may be able to enforce the condition. The enforcement of Protective Covenants may be subject to state laws. In some cases, the covenant will expire after a period of time. In a subdivision,the HOA or any individual in the subdivision can take the offender to civil court. Other restriction may not be enforceable as they are illegal. An example would be a restriction omitting a particular race or nationality.
So the answer is it depends mainly on how the restriction is written. The person with the problem with the chow would have the privilege of taking the owner to court to determine if the restriction is enforceable. He may then receive court cost and whatever damages if any occurred from a person playing fetch with his dog.
A deed restriction is a piece of paper that says you cannot or must do something. Enforcement requires some form of civil action, usually resulting in a judgment. The judgment is another piece of paper that says you cannot or must do something...
> But who sues?
The other party/parties to the contract
Any person entitled to benefit under a restrictive covenant is entitled to sue to enforce it. In the case of a subdivision it is assumed that the deed restrictions are for the benefit of each individual lot owner. As a result, each individual lot owner has the right to sue other lot owners to enforce the common deed restriction.
You call the police, and the Chief of Police comes with a shovel, and decapitates the offending chicken.
Here is the story in the Huffington Post
Yes sireeee bob. We fightin crime!
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"Deed Restriction Enforcement
"...he arrived at the home and chased the chicken in a nearby yard for 10 to 15 minutes before deciding to stop it with a shovel."
Oh my... Is there video? Tell me there's video. A police chief in the line of duty running after a chicken with a shovel...
No HOA on this particular subdivision.
So if another land owner within the subdivision was upset about the dog / mobile home / whatever, he calls his lawyer who then files a civil lawsuit against the (now) defendant? I guess that is the most logical and realistic answer. It stinks for the homeowner who has to put up his own money (initially) to fight for a restriction that he is obeying... But, 'Merica!
"Deed Restriction Enforcement
He must've left his one bullet in yesterday's shirt.:-D 😀
"Deed Restriction Enforcement
I'm not sure how it works in other states and/or parts of the world, but in my over simplified & complicated world the taxpayer funded governing body won't enforce poopola, even from a chicken chasing chow.
That's why they have HOA's. If a person violates a deed restriction, so be it. If I see the sheriff show up for an infraction on a deed restriction, I'd have a letter to the newspaper. Or simply get a bigger shovel with some barb wire on it, with 40,000 volts. Then there is the old reliable Marlin 22, or my Colt 357. Opps, sorry ma'am Fido got whacked AFTER he attacked ME.
What you're talking about is a restrictive covenant that is usually filed along with a subdivision plat. In Illinois, restrictive covenants have a statute of limitations of forty years. They vary State to State. The homeowners association can sue for enforcement within that time frame. They can be what kind of dog, how many (if any) pickups are allowed in the driveway, how big or small a house, whatever. They're binding and go with the plat.
Another type of deed restriction is an Environmental Lien. This is filed against a parcel restricting it's use because of potential health issues related to environmental contaminants at the site. These may restrict use to commercial or industrial operations only and also specify what, if any, engineered barriers such as paving need to be maintained. They keep Day Care centers from being constructed on old gas station sites, as an example. They are usually filed in response to an application for a No Further Remediation letter from the EPA or similar agency. They have an indefinite life span and are enforceable by any aggrieved party.
Enforcement in either case requires filing a lawsuit. It's a civil, not a criminal, offense.
In my neighborhood, the deed restrictions and the HOA are created in the same document. The HOA typically starts with a nice letter reminding them of the rules. If that doesn't work, they send out a few more increasingly threating letters. The HOA can fine an owner for breaking a rule, and if the owner refuses to pay the fine, the HOA can lien the home. If that doesn't work, they can foreclose on the lien, take over the property, and evict the owner. Of course, if there is a mortgage, the bank's lien will be superior, and the bank will eventually foreclose against the HOA's second lien, and take the property back.
If you have restrictions, but no HOA, then I agree with the above, that someone in the neighborhood would have to sue.
BTW, loved Futurama.
Yeah, the couple scenarios that I've seen have been no HOA's.
And yes, I'm clearly a fan as well having chosen my login from the professor's oldest and dearest friend, a foul smelling lobster, Dr. John Zoidberg. 🙂
