News You can Use: Deed Restrictions or Municipal Zoning Laws...... WHICH ONE PREVAILS (the answer is BOTH of them)

 Deed Restrictions or Municipal Zoning Laws...... WHICH ONE PREVAILS

As a real estate professional, you know that property use is regulated in multiple ways. Two of the most important legal mechanisms that control land use are deed restrictions and municipal zoning laws. While both affect what property owners can and cannot do with their land, they are fundamentally different in terms of their source, enforcement, and flexibility. 

Understanding these differences will help you better guide your clients through potential limitations on their properties.

Municipal Zoning Laws:
Government-Imposed Regulations
Zoning laws are local government regulations that dictate how land can be used within a city or county. These laws are part of a community planning effort to ensure organized growth, prevent conflicting land uses, and protect public health and safety.

Key Characteristics of Zoning Laws:

• Enforced by local government agencies (city or county planning departments).
• Apply to all properties within a designated area, regardless of ownership.
• Can be changed through a formal process, often requiring public hearings and government approval.
• Violations can result in fines, stop-work orders, denial of permits, and/or legal action.

Examples of Zoning Laws:

1. Residential vs. Commercial Use – A zoning ordinance may prohibit a business from operating in a single-family residential neighborhood.
2. Building Height Restrictions – A city may impose a 35-foot height limit on buildings in a historic district to preserve its character.
3. Setback Requirements – Zoning codes often require buildings to be set back a certain distance from property lines to maintain space between structures.
4. Use-Specific Restrictions – Certain zoning districts may allow only agricultural use or prohibit industrial activities.

Deed Restrictions: 
Private Limitations on Property Use
Deed restrictions, also called restrictive covenants, are private agreements that limit how a property can be used. They are typically put in place by developers, homeowner associations (HOAs), or previous owners.  Unlike zoning laws, which apply broadly to a city or county, deed restrictions are specific to the properties where they have been filed.

Key Characteristics of Deed Restrictions:

• Enforced by private entities (HOAs, developers, or other property owners).
• Apply only to properties described in the recorded document.
• Violations can result in fines, lawsuits, or forced compliance by the HOA or other property owners.

Examples of Deed Restrictions:

1. Architectural Controls – A neighborhood association may require all homes to have a specific exterior color scheme or roofing material.
2. Land Use Restrictions – A deed restriction may prohibit short-term rentals, even if the local zoning code allows them.
3. Fencing Rules – A community may ban chain-link fences or require all fences to be below a certain height.
4. Pet and Animal Restrictions – Some deed restrictions limit the number or type of pets allowed (e.g., no livestock in a residential community).
5. Vehicle and Parking Restrictions – An HOA may prohibit residents from parking RVs, boats, or commercial vehicles in driveways.

What Realtors Need to Know
Your clients have to go to two different places to research these restrictions.  A huge mistake we often see is buyers hyper focusing on one type of restriction and missing that there is a secondary restriction.  

For example, let’s say that your buyer only wants to purchase a property where they can tear down a single-family home and replace it with a multi-family condo project they can resell as individual units. They’ve been researching for weeks and finally found their perfect lot in Austin that allows for redevelopment into multiple units.  

What if there is a deed restriction filed back in 1910 that prohibits any buildings other than one dwelling on the property.  Would your client be able to build their intended plan?  Most likely the answer is no, not without incurring additional legal expense and potential challenge.  

What should this client have done? First, they need to do their research with the city as to zoning.  Then, they need to review the title commitment and the hyperlinked exceptions in Schedule B in detail to make sure nothing filed of record prohibits their intended use.  

Essentially, a property must comply with both zoning laws and deed restrictions. If a zoning law allows a particular use, but a deed restriction prohibits it, the restriction prevails.  If a property does not have a restriction allowing something specific but the zoning rules prohibit it, then the zoning rules prevail.  

Neither restriction type cancels the other one out basically and buyers need to be advised to review both.  Also, a buyer needs to be sensitive to the fact that deed restrictions can outlive zoning changes.  Maybe a tract starts as residential but is later rezoned for commercial use.  An existing deed restriction allowing only residential is not unwound with the rezoning of the property. This article was posted by TNT and I felt it was worth forwarding to everyone. 

Here's to Collaboration, Transparency and Building a Legacy, Per David Pruitt EXP Realty