How to remove a 30 year old deed restriction

by Theresa
(Iredell county, NC)

Visitor Question: The deed restriction prohibiting commercial development on property I bought in 1993 seems to no longer apply and appears to be an unfair condition at this time.

The land surrounding my property when I bought it was mainly wooded with a few cottages nearby. Now any land that has been developed is commercial, including a gasoline station, two-story spa, and medical building and other businesses. The road is now a four-lane highway, but was originally a two-lane country road. The person I bought the property from is deceased. Actually, my family and I were the ones who asked for the restriction.

How can this deed restriction be removed since all new development is obviously commercial? I plan to sell the property and believe that such a restriction against commercial development will hinder prospective buyers from viewing the property.

I would appreciate some advice on how to pursue this issue.

Editors Reply: We don't give legal advice, but we do give general advice from an urban planning perspective. In sum, we suggest that you consult an attorney who is accustomed to dealing with real estate questions.

Just last year a North Carolina court of appeals tried to clarify a law known as the Marketable Title Act. Like several states, many in the growing Sun Belt, the aim of this law was to prevent expensive searches for title defects from long ago, as long as those deed restrictions have not appeared in the chain of title for more than 30 years.

At play also is a potentially conflicting law known as the Planned Community Act, but it doesn't sound as if that would apply to your situation at all.

Historically we would say that a deed restriction can be removed only with the active cooperation of the person who originally imposed the restriction, or his or her heirs, oftentimes all of the heirs. As you can imagine, this presents a logistical problem in locating all the heirs and securing their understanding and help.

However, in your situation, you should consult an attorney to help you untangle the various layers of North Carolina law that pertain to your particular property.

You are quite correct in your assessment that the residential only restriction probably puts a lid on your property value as you prepare to sell. So while it will require some legal fees, this is well worth pursuing simply from a financial perspective.

It also makes great sense in terms of the land use pattern. There is no value in continuing to insist on residential use when the adjacent and nearby properties have been developed commercially.

You also need to pay attention to how the property is zoned, if indeed a zoning law from a county or city applies to this property. Even if your remove the deed restriction, if the property is zoned for residential use only, you still will not attain the maximum price when you sell. In that case, from what you have told us, you might have a good chance to have the property rezoned. For more information on the cost, paperwork, hassle, necessary public hearing appearances, and so forth, you would contact the planning department of whatever unit of government has zoned your property. If your property is located within the boundaries of a government that has zoning, and you don't know what the zoning classification is or do not understand what is permitted and what is prohibited in that zoning district, again ask the planning staff, which in most cases generously answers those everyday questions.

We hope this helps you prepare for finding the local answers to your deed restrictions question, as well as investigating zoning restrictions if this property is located in a jurisdiction that imposes land use zoning.

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