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Can Deed Restrictions Apply to Only Part of Subdivision


(Montana)

Visitor Question: We live in a subdivision that has had several of the properties excluded or removed from the deed restrictions/covenants over the years.

On these properties they have built different fences than what the covenants say can be built, placed a trailer house on one property which the covenants say cannot be done. We are wondering if by doing that, does it make the deed restrictions/covenants applicable or null and void for those properties that haven't been excluded?

Editors Answer: In general, usually there is nothing at all to prohibit some other lots in a subdivision being subject to deed restrictions, while other lots are free of restrictions.

We have to say "usually" in the paragraph above because each state regulates subdivisions and deed restrictions to some extent so it is possible that some states require all of a development to carry the same covenants (also called deed restrictions).

Returning to the typical situation, yes, a developer could restrict some lots and not others. Why he or she would do that is certainly worth wondering about though. It might have to do with the geography of the lot.

For example, think about a subdivision in which 25 percent of the lots face a lake. The developer might want to be more strict with the lakefront property owners by requiring a rear yard fence to prevent cut-through traffic. Or the developer might want to require or ban a list of trees and other plantings that would be either helpful to the health of the lake, or would be detrimental to that health.

To answer your basic question plainly, the deed restrictions do not become void if they are lifted on one property or a group of properties that comprise less than the entire subdivision.

But we see another ripple in this question. Why and how did some residents or property owners get rid of the restrictions, while others did not? Possibly each of these people negotiated with the developer or another previous owner to obtain cooperation in lifting the deed restriction. If this has occurred, console yourselves with the fact that these property owners probably paid an attorney quite well to accomplish this goal. If you and the rest of your neighbors also want to lift a deed restriction, you will probably need to do the same.

It also is possible that the deed restrictions say that the homeowner's association has the power to lift covenants upon request.

Our advice always is to read your particular set of deed restrictions to see if you can figure out how and why this has been allowed. If this smacks of favoritism you may want to go to court to receive an injunction to ban further withdrawals from the covenants. Or if you the person wanting to do what some privileged others are doing, you could either just forge ahead if your costs will be small, or you could hire an attorney to fight for your right to equal treatment under the law.

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