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What are Deed Restrictions and When are They Enforceable?
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What are Deed Restrictions and When are They Enforceable?

December 16, 2021 Real Estate Development, Sales and Leasing Industry Legal Blog

Reading Time: 5 minutes


As a real estate attorney, I’m often approached by clients purchasing a new property that are concerned with deed restrictions. They first want to know what deed restrictions (also known as covenants and restrictions) are, and second, they want to know whether such deed restrictions can be circumvented. These are great questions to ask prior to closing, as it is always advisable to know about any restrictions on the property you are looking to purchase before you close. It is typically much more expensive and time-consuming to fix a problem after you have closed on the purchase than resolve it beforehand.

Deed Restrictions

What Are Deed Restrictions?

Deed restrictions are covenants that are contained in the conveyances of real property that may be specifically enforced under the same general principles that govern the enforcement of contractual undertakings. Frumkes v. Boyer, 101 So. 2d 378 (Fla. 1958). They are further defined (1) as an agreement between landowners that their property will be used only for specified purposes in a specified manner, or (2) as a provision in a deed limiting the use of the property and prohibiting certain uses. Hill v. Palm Beach Polo, Inc., 717 So. 2d 1080 (Fla. 4th DCA 1998). A landowner may impose a restrictive covenant as a condition of sale for all or a portion of the real property with proper notice to the buyer. Fiore v. Hilliker, 993 So. 2d 1050 (Fla. 2d DCA 2008).

Restrictive covenants serve a valid public purpose in enabling purchasers of property to control the development and use of property in the surrounding environment. Marco Island Civic Ass’n, Inc. v. Mazzini, 881 So. 2d 99 (Fla. 2d DCA 2004). Although covenants restraining the free use of real property are not favored in the law, restrictive covenants are enforced in order to provide the fullest liberty of contract and the widest latitude possible in the disposition of one’s property, so long as they (1) are not contrary to public policy or express law (see Sinclair Refining Co. v. Watson, 65 So. 2d 732 (Fla. 1953)), (2) do not contravene any statutory or constitutional provisions (see Waterview Towers Condominium Ass’n., Inc. v. City of West Palm Beach, 232 So. 3d 401 (Fla. 4th DCA 2017), and (3) so long as the intention is clear and the restraint is within reasonable bounds (Id.). Thus, restrictive covenants contained within a deed that reserve the grantor’s right to approve plans for improving the land are valid and enforceable against the grantee, unless that right or the exercise of it is arbitrary and unreasonable. Miami Lakes Civic Ass’n., Inc. v. Encinosa, 699 So. 2d 271 (Fla. 3d DCA 1997).

Enforceability of Deed Restrictions

As provided above, deed restrictions are contractual in nature. This means that they cannot be imposed on buyers without the buyer having notice of the restrictions prior to the purchase of the property. The buyer of a home in a deed-restricted community may not assume that they were provided with notice of the deed restrictions prior to the purchase of the property, but this is typically a false assumption. Deed restrictions, along with any applicable homeowner’s association covenants and restrictions, are disclosed within the title commitment. Every purchase and sale agreement or contract for the sale of real estate should include a provision for the buyer to review the title commitment for the property. This provides the buyer with an opportunity to review any such restrictions in detail, noticing the buyer of any such restriction. This needs to be fully understood by buyers when purchasing a deed-restricted property.

Regarding enforceability, grantors, their successors, or assignees are the only parties that could bring an action to enforce the deed restrictions. See Waterview Towers Condominium Ass’n., Inc. v. City of West Palm Beach, 232 So. 3d 401 (Fla. 4th DCA 2017) (the right to enforce a deed restriction or restrictive covenant was made for the benefit of the party seeking to enforce it). A successor in interest to the grantor of a warranty deed has a clear legal right to enforce a deed restriction. AT&T Wireless Services of Florida, Inc. v. WCI Communities, Inc., 932 So 2d 251 (Fla. 4th DCA 2005). As such, when deed restrictions are included on a deed, they can be enforced by each subsequent owner provided they have not been rescinded or revoked. Additionally, the covenants and restrictions in a deed-restricted community are assigned to the homeowner’s association by the developer who drafted and recorded them. The association then has the right to continue to enforce the restrictions on all homeowners within the association.

Conclusion

Deed restrictions and restrictive covenants have become commonplace throughout the state of Florida, especially within homeowner’s associations. It is imperative that buyers review any such covenants prior to closing for a full understanding of any restrictions on the property they are looking to purchase. As always, a competent real estate attorney can help guide you through this process so there are no unwelcome surprises after closing.

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