How to add deed restrictions

by Sue
(Montgomery County Texas)

Visitor Question: How can we add restrictions?

Editors Reply: Generally speaking, the process should be deciding exactly what you think you want to add, and then hiring an attorney to draft the restriction, question you about aspects of the situation you may not have considered, and then taking charge of recording it properly in the county where the property is located.

However, different circumstances may require different approaches. First, if the "we" in your question means you and someone else with whom you now own property, and there are no other recorded deed restrictions, the case is simple and just as we outlined above. If you have several restrictions you would like to add, write them down to keep your appointment with an attorney short, simple, and therefore inexpensive. If your wording is incorrect or ill advised from a legal standpoint, the attorney will not be shy about telling you so.

If you already have some deed restrictions in place, and you and the other current property owner or owners were the ones who imposed the restrictions, try to go back to the same attorney or law firm if at all possible.

In the case of existing restrictions imposed by a previous property owner, take a copy of those restrictions to your appointment if it is convenient for you to do so. Again, the attorney's office can accomplish this task very quickly when at the courthouse, but the name of the game in keeping attorney's fees low is to keep it simple.

Now let's suppose that the "we" in your question is a homeowner's association, as might be quite likely in Texas. Or possibly you are a subdivision where no HOA was established, but all or most of you agree on deed restriction changes and additions you would like.

Establishing consensus in this case may be a little more difficult than it is for a couple, but the principle is the same. Figure out what you want and consult an attorney.

If your covenants are well drafted, they will tell how they can be amended, so you will need to follow that process. Brush up on that before talking to the lawyer.

But if you have an active HOA that has the power to make rules under your covenants or master deed, then you should question yourselves about whether you really want to add a deed restriction. If there is a chance that society or economics might change significantly in the future in regard to the topic of your proposed change, you might want to have the HOA make a rule instead. Often an HOA granted rule-making authority also has enforcement powers, and this is really all that is needed in many instances.

However, if the deed restriction you would like to add relates to something quite permanent, such as homes or other structures, of course you are correct in thinking you will need to add a restriction.

We hope these considerations are helpful as you explore how to add deed restrictions in your case.

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