Declarations and Neighborhood Restrictions

Declarations and Neighborhood Restrictions

They go under different names but the result is the same. Deed restrictions usually apply where a single owner takes a large tract and sells it off in 5 or 20 acre tracts and on each deed there are a few restrictions – no mobile homes, no out buildings larger than the home or closer to the street than the home and other basic kinds of restrictions.

In larger neighborhoods where a developer has taken a tract and divided it into multiple tracts then we see documents titled Declaration of Restrictions or Covenants, Conditions and Restrictions. These documents can be simple or very complex. Typical restrictions create minimum house sizes, types of materials to be used, colors of paint, types of roof and restrict parking on the street. Sometimes there are also neighborhood associations in which dues are required to take care of common amenities ranging from mowing some grass to ponds with fountains and neighborhood pools or tennis courts.

The next level of complexity arise when we take buildings and share the ownership in anything from townhomes to structures that look like apartments but each person owns a cube of airspace – condominiums. Once a gain a set of restrictions create rules of ownership. In this ownership structure we need to worry about ownership of common walls, who takes care of the outside of the building (roofs and paint) and streets along with pools and tennis courts. Dues often become monthly and can be significant. If you are going to fund operations of the owners association properly there needs to be money set aside to cover those major but infrequent expense – like painting the outside of structures, replacing roofs or resurfacing nonpublic streets.

If you buy into any neighborhood that includes any of the rules then you should always read them to make sure you can abide by the rules, you understand the expenses associated with operation of the property and that the area finances are in good order. You do not want to buy into an older neighborhood that has been debating when to replace all the roofs for 5 years right before the special assessment for roof replacement starts – unless you know it is coming and have some idea what the cost will be. It is one thing to decide to replace your own roof but when you and your neighbor share a roof and even though you have the money and expect to do the work – your neighbor does not.

When buying into to neighborhood with common expense ask for minutes of board and association meetings for several years back, look at historical budgets and look at balance sheets to assure finances are in good order. Often times low dues does not mean a well run association.

These restrictions generally follow the land because the first buyer can only sell what they own and they own the land less the right to engage in the restricted activity. It is important to note that all types of rules described are enforced by the neighborhood – either the association or one neighbor against another. The city or county does not enforce restrictions so it takes a lawsuit but they typically are enforceable. In some older neighborhoods you see restrictions on who can live there based on race or religion and those typically are not enforceable.

Vernon L. Jarboe is an attorney licensed to practice in state and federal courts in Kansas. Mr. Jarboe concentrates his practice in the areas of real estate and business law. He is one of eight well-known real estate educators recently chosen by the Kansas Association of Realtors® to teach video-based online courses that will be available nationally to more than 200,000 real estate professionals. If you have questions about declarations or restrictions in neighborhood development or real estate transactions in Kansas, call Vern at 785-357-6311.

The information and materials on this blog are provided for general informational purposes only and are not intended to be legal advice. The law changes frequently and varies from jurisdiction to jurisdiction. Being general in nature, the information and materials provided may not apply to any specific factual and/or legal set of circumstances. No attorney-client relationship is formed nor should any such relationship be implied. Nothing on this blog is intended to substitute for the advice of an attorney, especially an attorney licensed in your jurisdiction. If you require legal advice, please consult with a competent attorney licensed to practice in your jurisdiction.