Process for Updating Deed Restrictions
by Dan Michelini
(Bloomfield Township)
Visitor Question: Are there specific requirements that need to be followed when getting a home owners approval on updating a deed restriction, i.e., signature of witnesses or notaries?
Editors' Reply: Yes, there will be specific requirements for how this is done, based on your state law.
Changing or removing deed restrictions is not a do it yourself project, even though on this website we often counsel people to read their own deed restrictions and understand the process. Neighbors can and should save themselves legal fees by talking with others to find out who will agree to altering the covenants.
It sounds as though you have done this already, and are ready to proceed. You really need an attorney, as that attorney will advise you as to exactly what format the change has to take.
The change must be presented to your county in a format that is recordable, and in most places we know about, that means that a release of restrictions deed, or something with a similar name, must be prepared. That is what the individual property owners would sign.
The attorney who prepares this document would advise you of whether each signature must be notarized or witnessed, and then you can determine a practical method of obtaining the signatures and any notary seals or other such might be required. That's the answer for Dan.
For the rest of you reading this, we will go on to explain that usually everyone who could be perceived to benefit from the restrictions must sign the document, although this varies by state also. Sometimes the heirs of the original deed restriction creator must sign. Occasionally the original master deed set up a mechanism whereby unanimous consent would not be required, so perhaps three-quarters of the current property owners would be required.
So the complexity obviously varies by situation, with larger and older developments being more difficult. In many of these types of developments, people simply agree to ignore the restrictions. This works until someone buys into the subdivision who would like those restrictions enforced and is willing to bring the lawsuit to force the issue.
Our best advice is to never count on being able to modify the restrictions. Always be willing to live with them when you buy property. Then if you are able to lift undesirable provisions, so much the better.
Sometimes restrictions expire, either because the original deed was set up that way, or because state law requires it. Massachusetts is an example of the latter.
Courts will strike down restrictions that violate other laws also. The most famous example of this is that racially restrictive covenants were declared unconstitutional and therefore are no longer enforceable.
Our advice to current property owners is to think very carefully indeed about whether you want to impose a deed restriction that may seem quaint or just downright impractical in 30 or 50 years. In many cases you are creating hardships and heartaches for future owners, and perhaps even limiting the future market for your property.
If you are a developer charged with creating a master deed for a development, think carefully about what is enshrined forever in deed restrictions, versus rules that a homeowners association board makes and changes to fit the times.
Also if you are a developer, we have a further piece of advice. Be very careful to set up your development with the best chance possible that a homeowners association continues to function, if that is your major enforcement mechanism. We receive far too many questions, comments, and complaints from residents in a development where the HOA has ceased to exist, yet there are deed restrictions that need to be made known to future residents, enforced, and interpreted. So the HOA route is not foolproof either, but it may be superior to setting up a deed restriction that homes can only be painted white or off-white in perpetuity.
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