If someone violates a deed restriction, what is a resident’s recourse? Deed restrictions are specific building requirements listed in a property deed that limit what can be built on that particular lot. When a new neighborhood is developed, the developers use deed restrictions to ensure all properties on particular street segments or larger areas adhere to specific building requirements such as how close a structure can be to the property lines (setbacks), height limits, overall structure size, as well as style and cosmetic requirements. Deed restrictions follow the land, not the owner of the land when the deed restrictions were implemented. When you buy property with deed restrictions, you, as do all future owners, agree to and are contractually obligated to abide by them [source McKenzie].
Tightly controlled neighborhood associations make heavy use of deed restrictions. Neighborhood associations are legal entities with boards of directors that collect dues and can levy fines for any rule violations on homes in housing developments of which they have control. If a resident under the auspices of a neighborhood association is unable to or refuses to cure a deed restriction violation, the association will often file a civil lawsuit and pursue legal remedies against that resident or homeowner. The West Austin (and W.A.N.G.) area is not under the control of a neighborhood association. Instead, as developers added new streets or areas to the neighborhood over the past 100 years, the developers wanted each new section to adhere to unique scale and architectural styles and character. This, in theory, enhanced the value of the real estate in the area since it would give buyers some level of assurance. Other than City zoning rules, and as zoning rules change over time, these were the only way to ensure the implementation of certain building limitations. When you move into a neighborhood with deed restrictions, you not only know what you can do with your own property, but you also know what to expect of neighboring properties.
In theory, deed restrictions should prevent someone from building a house 25 feet from the street while everyone else on a street is set back 75 feet, or be able to build two stories when everyone else is only allowed one, for example. Unfortunately, it does not work this way in practice. While a deed restriction is technically a contractual obligation to which the landowner is obligated to live up to, in older areas of Austin that do not have neighborhood associations, it is up to nearby residents and landowners to spend the time and resources to enforce deed restrictions. Municipalities are usually not very helpful in this situation – the City of Austin is one of those municipalities that does not enforce deed restrictions in the permitting process. A developer can purchase a lot with an old house, tear it down, and obtain a legal permit from the city that ignores any deed restrictions. If neighbors care about keeping their street or area’s character that are set out in deed restrictions, it is their responsibility to be vigilant and recognize when someone attempts to violate a deed restriction. It is also up to the residents and landowners to notify the violating party that they are in violation, and to pursue enforcement in court before construction begins if the violator persists.
Unfortunately, it does not end there. Taking a deed restriction violation to court does not ensure success. It is up to a judge to make a final ruling and many factors are taken into account. For example, if deed restrictions in an area have not been historically enforced, a judge may rule in favor of a landowner wanting to build a deed restriction violating structure. As few as one or two structures that are violating their deed restrictions are enough for a judge to decide that all restrictions in that area are no longer enforceable. Sometimes, judges are just not sympathetic to deed restrictions instead adhering to “property rights” philosophies. Since nearby residents and landowners must foot the bill for all legal and court costs of deed restriction enforcement themselves, this can quickly become a very expensive endeavor. Costs can sky rocket if cases drag on or rulings go through a series of appeals. Nearby landowners and residents who feel strongly about the enforcement of deed restrictions must be vigilant, but must also have the means to fund good legal representation and potentially extended litigation.
West Austin is a mixed bag of areas that have adhered strongly to deed restrictions with residents actively working to keep the scale and character of their areas and those that have allowed violations to occur. Many areas have been successful in keeping developers from violating deed restrictions thus retaining their ability to enjoy their property, keeping the overall feel and character of their streets, and maintaining their property values. Neighbors near the multifamily developments along the north side of Enfield Road attempted to uphold deed restrictions (75 foot setback) on these properties. Deed restrictions that violate Federal or State Law, such as restrictions about race or family status are considered invalid and will not be upheld by a judge. Normally, courts do typically uphold deed restrictions as long as those deed restrictions have not been proven to be waived or abandoned.
If you have questions or concerns that a newly issued permit or the construction of a new structure may be violating deed restrictions, the City is not a good resource since they do not recognize nor enforce deed restrictions when issuing permits. Some deed research on the property in question may turn up some valuable information. It is most important, though, to consult a very good and experienced real estate attorney if you are concerned that a nearby landowner may be violating their deed restrictions and potentially hurting the value of your property or diminishing your ability to enjoy your home.
NOTE: Nothing in this article constitutes legal advice. Please consult an attorney for legal advice.
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A NEIGHBORHOOD GUIDE TO DEED RESTRICTIONS
In addition to Austin’s zoning protections, residents of West Austin can use deed restrictions to protect their neighborhood integrity and quality of life. The goal of this guide is to provide answers to common questions regarding enforcement and maintenance of deed restrictions.
This publication should prove useful for civic groups, community leaders and residents. However, for assistance with deed restriction creation, extension, renewal or amendment, it is recommended that groups or individuals interested in these tasks enlist the assistance of a private attorney, since working with deed restrictions can involve technical legal processes that require a certain degree of expertise. The information presented in this pamphlet is general in nature and does not constitute legal advice.
Q: What are deed restrictions?
A: Deed restrictions are written agreements that restrict or limit property use or activities in a subdivision. These restrictions appear in the deed records, and are private agreements or contracts between a property buyer and a property seller.
Q: Who must abide by deed restrictions?
A: In most cases, deed restrictions are binding upon every property owner in a defined neighborhood or subdivision, and all subsequent owners of property in a deed-restricted neighborhood or subdivision must abide by the restrictions.
Q: How are deed restrictions put in place?
A: Deed restrictions are usually created and imposed on lots in a subdivision by the initial developer. At that time, the restrictions are filed in the Deed Records of the County Clerk before the developer sells any lots in the subdivision. Deed restrictions may also be created by residents of a subdivision; more information on this is presented later in this booklet.
Q: Why are deed restrictions important to my subdivision or neighborhood?
A: One of the primary purposes of most deed restrictions is to preserve the residential character of a subdivision or neighborhood by preventing property use for commercial or industrial purposes. This makes deed-restricted neighborhoods desirable for people who wish to live in an area that is completely residential.
Deed restrictions can be used to preserve the existing “look and feel” of a neighborhood by defining a minimum set of restrictions, such as setback rules (that control the placement of structures in relation to other properties), subdivision prohibitions (which prevent a developer from dividing a property for purposes of building multiple separate homes).
Q: How can I find out whether my subdivision or neighborhood has deed restrictions in effect?
A: To find out whether your deed restrictions are in effect, you should obtain a copy of the restrictions. The Travis County Clerk’s Office is the official source for deed restrictions. Deed restrictions are on file with the Travis County Clerk’s Office and can be obtained from the County Clerk’s Recording Division at 5501 Airport Blvd, Austin, Texas 78751 (854-9188).
Q: What can I do to help maintain compliance with deed restrictions in my subdivision or neighborhood?
A: Individual homeowners can file lawsuits to stop construction or additions to property that are a violation of the deed restrictions. Texas law gives deed restrictions superior status over other City zoning ordinances or neighborhood planning. The burden is on the homeowner wanting to do something in violation of the deed restrictions to prove that the deed restrictions
should be voided.
Q: What should I or my association do about a deed restriction violation?
A: First, make sure that there is a violation. Review your deed restrictions carefully — again, you may wish to enlist the assistance of an attorney — to determine whether your subdivision’s restrictions are being violated. If you are uncertain, but believe a violation may be taking place, you may also file a complaint with the City’s Legal Department. They will advise you as to whether a violation appears to be present, and whether the City can participate in enforcement on your behalf.
If a violation does appear to be occurring, you might want to begin by simply talking with the owner of the property where the violation is located.
If talking to the property owner does not help matters and your civic group is convinced that a violation exists, contact the violator again through certified mail with a return receipt requested. Make it clear in your letter that a violation of the deed restrictions is occurring and that the group plans to take action if the violation is not corrected immediately.
Q: What if the violator refuses to comply with the deed restrictions?
A: If the violator ignores notification of a violation and refuses to correct the problem, legal action can be taken. The courts have held that deed restrictions are enforceable legal contracts that represent implied promises to restrict the use of land. Therefore, suit can be filed in state district court, or in some cases justice court, to force the violator to comply with the applicable deed restrictions. As discussed below, this legal action can be taken by the City, though it may also be taken by a private attorney.
Q: What arguments are usually made to defend deed restriction violations?
A: Traditionally, Texas has had a presumption in favor of the free use of property, meaning that the courts are likely to enforce deed restrictions only against obvious violators. However, recent legislation has encouraged courts to pursue more liberal readings of deed restrictions, often making them easier to enforce. Despite this, a violator can be successful by establishing a valid defense. Two of the more common defenses used are:
· Laches (pronounced latches) — this form of argument seeks to establish that the complaining parties allowed the violator to proceed to act at his expense and that the complainants failed to give notice of a violation within a reasonable length of time;
· Waiver — this tactic seeks to demonstrate that numerous similar violations have gone unchallenged in the same subdivision.
Because these defenses have been successful in the past, it is very important that you and your civic club or neighborhood association act quickly to correct violations, especially if something is going to be built or is being built. Letting deed restriction violations exist for a period of time can make them more difficult to stop.
Q: Is there anything else I or my neighborhood association can do to prevent deed restriction violations?
A: Yes. Many people do not like the idea of taking legal action against a neighbor; because of this, preventive action is almost always the best method of ensuring compliance with deed restrictions. Most of the time, legal action can be avoided if neighbors make sure that each of their fellow residents is aware of the existence of the deed restrictions. If possible, your neighborhood group might want to provide new residents with a copy of your subdivision’s deed restrictions so that they will know their obligations. Be friendly, but make it clear that corrective action will be taken against any violation.
VOTE on CODENEXT ** VOTE on CODENEXT
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Require city wide voter approval of CodeNext
CodeNEXT Draft 3 released February 12th is inconsistent with Austin’s current comprehensive plan and our Central West Austin Neighborhood Plan, ignores the input that West Austin neighbors have tried to make and allows for even more density than Draft 2 on 7,000 sf lots, while cutting parking.
Don’t let our city council pass CodeNEXT on its own! Download, sign, and mail a copy of this legally binding petition to "Let Us Vote Austin" demanding that it first be approved by Austin voters.
Let Us Vote Austin SPAC, 3009 East 11th, Suite 2, Austin, TX 78701 8704 or leave at dropoff boxes at 613 Hearn St or 2410 Dormarion Lane.
Thursday, March 15th is the deadline to submit petitions....
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CODENEXT DRAFT 3 AVAILABLE NOW
Draft 3 of CodeNEXT, the staff recommendation, was released Monday, Feb. 12. To learn more about the new draft, visit AustinTexas.Gov/Codenext.
To view and comment on the code, visit codenext.civicomment.org.
To view and comment on the map, visit codenext.engagingplans.org.
Download the full copy of the code here.
Because this is the staff recommendation, all comments received on this draft will be compiled and provided to the Austin City Council, the Planning Commission, and the Zoning and Platting Commission for further deliberation.
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Letters to the Board.....
Send us your comments and thoughts on neighborhood issues.....let's work together
email us at WANG-BOARD@WESTAUSTINNG.COM
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10 AM-Jay White, contributing editor for Texas Gardener, Masters in Horticulture, Propagating Like A Pro
11 AM-Daphne Richards, Texas A&M AgriLife Extension Horticulturist
Down To Earth With Daphne: Your Top Questions From Travis County Extension
NOON-April Rose, Consulting Arborist, Rosewood Arboriculture, Environmental Health To Save Our Trees
BRING YOUR GARDENING QUESTIONS!!
What’s a garden event without a plant sale? Mayfield has the best deals in town for hard-to-find heirlooms and other perennials perfect for the April garden. A “garden goodie” raffle for the discerning gardener will round out the day.
As always, Trowel & Error benefits one of Austin’s favorite and enchanting parks, historic Mayfield. Guests tour the restored Mayfield-Gutsch home, surrounded by stone-walled gardens patterned in the 1920’s after the cottage gardens of England. Towering palms, flowering trees and perennials line meandering paths set among ponds filled with water lilies and fish. Gregarious peacocks supervise overflowing flowerbeds planted and maintained by community volunteers.
Sponsored by Friends of the Parks of Austin, a non-profit organization, TROWEL AND ERROR is the solitary fund-raiser for historic Mayfield Park. Although admission is free, a $5.00 donation is requested.
For more information: 512-453-7074, neenok@aol.com or mayfieldpark.org
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.............PILLBUGS
Pillbugs, or roly-polys, are crustaceans, more closely related to crayfish and shrimp than insects. Crustaceans usually live in aquatic environments, but pillbugs are terrestrial. Even though they live on land, they still require moist environments for survival. Pillbugs do not bite, sting, transmit diseases, or cause physical damage to the home or its contents.
Pillbugs are ¼- ½” with dark grey coloring. Their oval bodies are convex above and either flat or concave underneath. Pillbugs have seven pairs of legs and two pairs of antennae and roll up into a ball when disturbed.
Pillbugs are scavengers, feeding mainly on decaying organic matter. They may occasionally feed on young, tender plants, but damage is typically not significant. They can be found under mulch, leaf litter, flower pots, compost, stones or other items resting on the ground. Pillbugs may invade crawl spaces and homes at ground level with common points of entry being door thresholds and expansion joints. When these pests are seen indoors, there is usually a large population breeding outside of the home near the foundation. Since pillbugs require moisture, they do not survive indoors for more than a few days unless there are very moist or damp conditions.
To manage infestations inside the home, rely on sanitation and exclusion techniques. Repair or replace door thresholds and seal expansion joints where pillbugs may be entering the structure. Pesticides are not usually needed indoors to manage these occasional invaders. They soon die on their own from lack of moisture and can be swept up using a broom and dustpan or a vacuum.
Outdoors, move any piles of debris away from the foundation of the home. If there are high numbers in and around landscape beds, turn the mulch to allow it dry out which makes the area uninhabitable. Any leaky faucets or irrigation lines as well as leaking air conditioning units should be repaired to eliminate moisture buildup. You may choose a pesticide to treat mulched areas or other areas that are harboring large pillbug populations. Look for products labeled for pillbugs, sowbugs, or isopods.
For more information or help with identification, contact Wizzie Brown, Texas AgriLife Extension Service Program Specialist at 512.854.9600. Check out my blog at www.urban-ipm.blogspot.com
The information given herein is for educational purposes only. Reference to commercial products or trade names is made with the understanding that no discrimination is intended and no endorsement by Texas A&M AgriLife Extension Service or the Texas A&M AgriLife Research is implied.
The Texas A&M AgriLife Extension Service provides equal access in its programs, activities, education and employment, without regard to race, color, sex, religion, national origin, disability, age, genetic information, veteran status, sexual orientation or gender identity.
Wizzie Brown, BCE
512-854-9600
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