Additional Set of Deed Restrictions

by Tom Livingston
(Austin, Tx)

Visitor Question: I am in contract to purchase a property here in Hays County Texas. The property in located in a subdivision with recorded Deed restrictions and C,C.& R's.

The seller purchased 6 contiguous lots in this subdivision and further restricted the lots. I.E., Original deed restrictions allowed a lot split of not less than 1 acre. The enhanced restrictions do not allow a lot split at all. The original restrictions allowed for cows; the enhanced restrictions do not allow this.

How can this seller further restrict these lots? He only owns 6 lots of 30 total. The Homeowners Association and a majority of the homeowners in the subdivision were never consulted, nor did they approve of these enhancements. (The seller say they are not changes or modifications, just enhancements).

Can't seem to find a source that clearly speaks to this.

Thank You,
Tom Livingston

Editors Respond: Keep in mind as we answer this that we are not attorneys, but rather city planners with experience in such matters. None of us practice in Texas either, so the final answer rests with a Texas attorney.

But in general in the U.S., the owner of property can impose whatever deed restrictions he or she wishes. If there are two or more sets of deed restrictions that accumulate over the years, all must be obeyed. In addition zoning and other municipal or county laws must be obeyed.

Of course a problem arises when deed restrictions and/or governmental laws are in conflict. It is worth noting that courts often uphold the more restrictive of any two or more sets of regulations or restrictions that are in conflict.

However, in this case we do not believe that the two examples you cited would be found to be in conflict. We think this way because we suspect that the original CC&Rs did not create an affirmative responsibility to split lots or keep livestock, but simply left those open as options.

Next you have another set of deed restrictions that do not allow the exercise of those options. The key point is that those restriction too are legal and binding, providing that your seller actually owned the land at the time those were imposed, and providing that these restrictions were properly recorded.

Now you have to weigh what you want to do, given these probabilities. If it is vitally important to you to be able to split your lot at some point in the near or distant future, and if keeping cows now or sometime later is a goal or dream, you will have to consider investing in the services of a Texas attorney.

If you do not foresee wanting to do either of these things yourself, we cannot see that these new deed restrictions would damage your property values or quality of life. Arguably, depending on the nature of the subdivision, the second set of deed restrictions actually could improve your property value and preserve a particular character.

As the percentage of developments covered by a master deed listing CC&Rs continues to increase, we are likely to see more and more similar situations. Both prospective property owners and title companies need to become acutely aware that more than one owner may have imposed restrictions, and that many times there will be no requirement anywhere in law that the homeowners association be notified of prospective or even recorded additional deed restrictions.

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