Lack of Enforcement of Deed Restrictions

by Linda

Visitor Question: If Deed Restrictions have not been enforced, do they lose their validity in California. There is no HOA; it is simply a height of a home restriction put on by original grantor.
Thank you

Editors' Reply: If this is more than an idle question of a curious mind, Linda, you need to ask a California real estate attorney.

For the benefit of other readers, though, we'll say that there is much variation among courts and states on whether lack of enforcement for an extended period of time is a factor in allowing a deed restriction to be invalidated.

Many court cases seem to suggest that if a deed restriction hasn't been enforced in decades, it becomes unreasonable to demand its enforcement now.

Also entering into some judicial decisions seems to be the factor of whether the original deed restriction was reasonable (for example, it would be unreasonable to say that no point on a house could be higher than 9 feet off the ground).

Yet another factor in a court case might be whether the original violation of the deed restriction was more a result of blissful ignorance or willful flaunting of the restriction.

We suspect a definitive answer to your question would have to be determined in court. We do not give legal advice on these pages, but rather make general observations about common interpretations of community development matters. But a California attorney can see if there is a specific law there that would cover unenforced deed restrictions.

To address another facet of your situation, the answer really would be no different whether it was a homeowner association deed restriction or a single-family home deed restriction.

Overall, the safe conservative approach is to always assume that a deed restriction will be upheld by a court. If, for example, your question had been prompted by a wish to add to your second or third story, which would be in violation of the deed restriction, but you thought it wouldn't matter since someone before you already violated the restriction, good conservative advice would be not to proceed.

However, it's equally true that when deed restrictions are tested in a court, there's usually some wiggle room, with the whole question of reasonableness coming into play in this fashion:

1. Was the original restriction reasonable or wildly eccentric or impractical?

2. Was the original failure to enforce the restriction reasonable or an attempt to do something sneaky?

3. Is what you are now proposing to do (presuming you propose to do something) reasonable, in light of today's situation?

And all inquiries about deed restrictions need to close with the reminder that if you can find the original grantor, or his/her heirs, you should consult with these folks to the degree possible to determine their attitude. It could be that the restriction would be lifted willingly, if that's what you want.

If you want the restriction to be considered valid and enforced, even to the extent of requiring something that already exceeds the designated height to be demolished, then see that California real estate attorney sooner, rather than later.

While we're not answering your question, hopefully we're giving you some useful things to consider.

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