Deed Restriction Setbacks Stricter Than County

by Pat Reed

Visitor Question: Are front, rear, and side lot setbacks enforceable if deed restrictions are stricter than county rules?

Editors' Reply: Yes indeed, setback requirements in deed restrictions that are more strict than governmentally imposed rules are definitely enforceable.

The question is who can enforce them. Again the answer is straightforward. These setbacks would be enforced by the homeowners association, if one exists and if the master deed empowers it to do so.

Homeowner association (HOA) enforcement varies from just sending threatening letters to the actual ability to impose fines for violation, and to place a lien against the property if fines are not paid. The HOA also can go straight to court to enforce the deed restrictions if it does not feel it has the legal authority or the administrative capacity to impose and collect fines.

In this case the HOA probably would opt to go to court because setbacks cannot be altered too easily. To see the difference, think about the example of a homeowner in an HOA development who hangs a banner in front of the home in violation of the covenants. The HOA could reasonably levy a fine for every day the flag stays there.

But a setback violation presumably would take longer for the homeowner to correct and would have more serious implications for the appearance or functioning of the community. So a daily fine would be kind of a stupid move.

Now if there is no HOA, or if the HOA is not functioning, any neighboring owner or groups of neighbors can file the suit.

Of course the HOA or individual neighbors filing a suit to enforce the covenant must pay for the legal fees, so that deters most frivolous lawsuits.

The important point for property owners and prospective buyers to understand is that both deed restrictions and local zoning or other local government law requirements must be followed. When they conflict, as in your example, the more restrictive of the two requirements must be met.

It is fairly rare for master deeds to even address setbacks, so whoever wrote these covenants really intended to make sure that the more stringent setbacks were met.

Another possibility is that the county approval of your development included a provision that in effect allows the county to participate in enforcement of your covenants. This does not happen too often, but it does occur.

In that case, the county could even enforce the deed restriction on setbacks through ordinary code enforcement means, even though the requirement is more strict than the county's own rules.

So the big point is that developments can and do write covenants that are much tougher to meet than the regulations of the local government.

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