Visitor Question: A deed restriction on a particular lot recorded in the 30-s provides for a 30 foot setback. All homes on the street are built and have a 30 foot setback. A new proposed development ignores that and plans call for an addition to an existing building to be built right to the sidewalk.
The development is an inherently beneficial use. Does that make any difference in the enforcement of the private deed restriction?
Editors Respond: We must caution that we are planners, not attorneys. But as far as we know, there is no provision for deed restrictions in New Jersey to automatically expire after a certain period of time. Ask an attorney friend or read the state law online to verify unofficially that this is true. If that is the case, then this deed restriction would still be in effect.
To answer what we see as the main part of your question, no, whether the intended use, in violation of a deed restriction, is beneficial or not beneficial does not change the enforceability of the deed restriction.
As you are aware, a deed restriction is a private agreement only enforceable at all through private lawsuit. You cannot call your city or county, complain, and have them work to enforce the agreement.
Some cities and counties are diligent about checking whether building permits violate any deed restriction, but most do not have the resources to make such a check. So you cannot count on the government to catch this violation.
If you and your neighbors actually welcome the building addition that would be in violation of the deed restriction, you could cooperate with the property owner to have the restriction removed or changed.
Whether it is easy or difficult to remove a deed restriction depends on state law and whether there is a homeowners association, but also usually more importantly on the wording of the particular restriction. In well drafted restrictions, the original attorney explains how a covenant can be changed.
Sometimes the consent of the person who originally imposed the restriction is required. In this case probably that original owner is deceased, which means that you would now have to locate and obtain the cooperation of all or most heirs. Sometimes even finding these individuals is tricky, and if you find them, sometimes they really are not keen on getting involved in your situation or even in expending much mental energy in understanding it.
The difficulty of all this depends on the number of heirs by now, the ease of locating them, and their willingness to help.
Or sometimes the author of the restriction was bright enough to figure out that after his or her demise, the people who should care about the deed restriction would be the current property owners. So possibly you might get by with just obtaining written consent of all or a specified majority of the current owners--and if you obtained that, the restriction could be lifted or modified.
So early steps for you would seem to be: (a)canvassing your neighbors to see if they agree with your ideas and if so, whether they are willing to share legal costs, (b) checking on the exact wording of any modification provisions of the deed restriction, and (c) consulting an attorney if there is no language to explain how changes can occur, or if and when you know informally that you have the consent of all parties who would have to agree to changing the deed restriction.
Alternatively, you could just ignore the whole situation, with the thought that if the new use is as beneficial as you believe, no one will sue and the whole situation will not be a problem.
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