by Marie Chagnon
(Uxbridge, MA Worcester County)
Visitor Question: Can an individual homeowner file his own Deed Restriction or is it always necessary to have a lawyer do it? I was under the impression that an individual could put anything on his deed he wanted including restrictions.
Editors Reply Certainly an individual homeowner can see that a deed restriction is added to a deed that she or he is signing--providing that you can get a title company or other closing agent to agree to this.
Local practices among title companies vary quite a bit, so you should defer to your local real estate agent's knowledge on this topic.
If you are not using an agent, you might find practical and informal advice at your local court house, where you could ask a recorder of deeds (or equivalent title in your state) about local practices. Usually these folks are friends with the real estate community and also the legal community, and sometimes if you are willing to get into a conversation with them, you may find out about local customs.
Depending on the restriction you want to impose, however, and how adamant you are that this deed restriction is followed in perpetuity or as long as your state law allows, you may want to consult an attorney just to make sure that the restriction is going to hold up in court if challenged.
When we say this depends in part on the covenant you want to impose, we are thinking that the more complex and-or difficult to enforce your provision will be, the more likely it is that you will want to have an attorney draft this for you.
On the other end of the spectrum, if you are really just trying to bluff your buyers into thinking that they are not allowed to do something, or must do something, you should probably go with the least expensive option available to you. Your real estate agent may well be able to leverage his or her relationship with the title company into just putting a simple statement into the deed.
But since you are in the northeastern part of the U.S., we would advise you not to count on being able to do this yourself. You may find it is not as expensive as you think to consult an attorney about drafting a sentence on your behalf.
These seem to us to be the considerations in whether you can introduce your own deed restriction without an attorney.
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