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Rezoning directly conflicts with deed restriction

Visitor Question: I own a single family home in Los Angeles. Recently, because the home is close to a recently completed urban rail line, the city, as part of a general rezoning of the master zoning plan for the area changed the zoning from r1 to r4.

However the HOA states in the C C R's that the lot must remain R1.

Generally, the more restrictive rules apply, however, since the city had hearings, and the zoning change was passed as an ordinance by the city council, does the public interest of the city zoning code and general plan change overcome the private restrictive covenant?

Editors Reply: While we have answered somewhat similar questions before, we find that this question provides some nuances we haven't addressed previously.

The general principle is that land owners must obey both public requirements, such as zoning and other development regulations, and private deed restrictions. Let's follow that logic through in this case.

Yes, we agree with our visitor that a court would be likely to decide in favor of the city's zoning in the event of a direct conflict with a restrictive covenant, which is what we have here. There is a very large body of law upholding zoning, especially when it seems to be backed by sound planning practice as is the case here.

We don't know any specifics about Los Angeles at all, but in many cities, the people issuing development permits would not check deed restrictions on a routine basis before issuing a building permit. So you possibly could have your city issuing a building permit for an r4 use that is not permitted in r1.

But let's look at the other side. It is also true that land owners must abide by covenants. So a new land owner who received a permit from the city for an r4 type use, presumably higher density residential, could find himself or herself in the unfortunate situation of facing a lawsuit from the HOA, or perhaps less intensely, an HOA ready and willing to impose fines and other penalties at its disposal for violating the restrictions.

In sum, the city can and will enforce its zoning, but you the members and dues payers of the HOA must pay the legal fees to enforce your covenants if a buyer or prospective buyer wants to argue the point.

Rather than worrying about all this, we have two suggestions about steps you could take. First, talk directly (and preferably in person) with someone at Los Angeles city hall who has authority over building permits and another person probably who has authority over zoning enforcement. Explain the situation and see if your city does in fact check deed restrictions before issuing permits. If Los Angeles does so, try to create as much of a record as you can that this matter has been brought to their attention. At a minimum, write notes from your meeting, or better yet, send them a letter just stating the outcome of your conversation.

If you find that Los Angeles is likely to issue a building permit without a check of the deed restrictions, or believing that their own laws supersede deed restrictions (a logical belief on their part), then you may want to see how the HOA feels about amending the CCRs to fit with the new reality. Then at least you wouldn't have the situation of a developer starting to build a deluxe apartment building and suing if the HOA objected at some point.

On the other hand, you and the HOA may strongly want to uphold the r1 restriction, and you fear with some justification that the city won't help you do this. In that case, you could ask the city to revisit their recent rezoning, pointing out the deed restriction. If you tried that already and failed, you may have to rely on being very vigilant about property coming up for sale. If you notice one of the rezoned parcels (we are assuming there were more than one, but don't know that) coming up for sale, inform the agent by certified letter that the HOA and-or certain individual property owners are standing by ready to sue if the new buyer shows any signs of not complying with the r1 restriction. Request a face-to-face meeting with the agent.

As usual in this section, we must note that we are not attorneys and are not privy to local documents, customs, and laws that would alter our opinion. We just hope our observations are of some use while you are thinking about what you would like to do about this situation.

If there is an object lesson for municipalities in this, it is that checking for deed restrictions when contemplating a rezoning would be a good practice to initiate.



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