Building Codes Versus Deed Restrictions

by Matt Greer
(Springfield ill )

Visitor Question: What power do building codes have over deed restrictions over a title? What power over a title do building codes have?

Editors Reply: First, let's define relevant terms. A building code is adopted by local ordinance (law) and governs standards for new construction of buildings. There are other types of municipal codes; if anyone reading this is confused about that, see our code enforcement section on the menu.

Deed restrictions are privately enforceable, non-municipal restrictions placed on a property. In almost all states, deed restrictions are said to "run with the property." This means the restriction could have been written in 1920 and still be valid for all future property owners, unless conditions for changing the restriction are met. They can be very beneficial and rational, or they can simply reflect whims and eccentric preferences of the person who imposed the restriction.

In newer developments, deed restrictions are usually consolidated into a master deed with covenants (individual provisions) that function as regulations on what can and cannot be done on the property.

A title is the written legal instrument by which property ownership is established. It is recorded in public records in the county where the property lies. The title is said to change when real estate is sold; the new title document conveys property rights from one person or entity to another.

Neither building codes nor deed restrictions impact whether a title is valid. That is an entirely separate legal issue, and in the U.S. at least, title companies involved in the "closing" on real estate sales issue insurance that the title is valid.

One other point to clarify is that our visitor who asked the question may also be lumping land use zoning requirements into "building codes." Like building and property maintenance codes, zoning is a local law that typically focuses on permitted land uses and other general parameters governing development, such as setbacks from streets and property lines, permitted height of buildings, and so forth. (If in need of more information, we also have a substantial zoning section on this website.)

Zoning also can be enforced by the public agency that imposes the zoning.

Violations of building codes or zoning do not mean that the owner of a valid title could lose the title--at least not unless the violation of a property maintenance code is so severe that the local government condemns the property.

Violations of deed restrictions go unchallenged until either: (a) a homeowners association with power to impose fines and other disciplinary actions exercises those rights, or (b) someone considered by the court as having legal standing to do so sues to have the deed restriction enforced. Courts have a wide variety of remedies at their disposal in the deed restriction lawsuit situation.

Lastly, let's summarize by making our most important point: Property owners must abide by both building codes and deed restrictions. If building or zoning codes are not met, the public sector can take enforcement action, but if deed restrictions are not met, it is a private civil lawsuit matter.

But violations of building codes or deed restrictions would not cloud the title in most instances. If you have a specific situation in mind, it is always best to consult an attorney licensed in your state and experienced in real estate law. Exceptions to this broad advice are possible.

(December, 2016)

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