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Deed Restriction/Covenant to protect lots from inappropriate development

Discussion in 'Liens & Encumbrances' started by Gnoto, Mar 6, 2016.

  1. Gnoto

    Gnoto Law Topic Starter New Member

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    I own a house in a very old residential neighborhood dominated by 1880's-built single family homes.

    The city has zoned the neighborhood such that a developer may construct a 40-ft high 3-story apartment building. I do not feel this is appropriate for the neighborhood.

    It just so happens that 5 contiguous lots have become available and are prime for development.

    I am considering purchasing 2 of the lots positioned in the middle of the 5, to prevent unwanted development. My plan would be to buy the lots, impose a deed restriction or a restrictive covenant on the parcel to limit the scale of any construction on the lots, then sell the lots (most likely at a loss).

    Among the many listed, I have identified a Zone Code District description from the city zoning guide whose permitted structures are more suitable for the neighborhood. The zone code defines what style of structure may be built, height limitations, set-backs, etc.

    Now I need to tie the zone code to the covenant/deed restriction.

    I realize that I could cut and paste all the specifications of construction of each type of structure that may be built under the zone code district designation description. However, the result would be a gigantic block of text with references to pictures, etc. I do not feel that would be suitable/practical for a covenant/deed restriction.

    Because the property will later be sold with the deed restriction in place, I fear that too much text would scare away potential investors. I also fear potential transcript errors and un-linked references may cause problem in the wording itself.

    It seems the most practical way to ensure that any structures built conform to that defined by a zone code designation is to reference that zone code designation in the covenant/deed restriction.

    I would like the covenant to cover as much definition as possible, with as little wording as possible, and with no ambiguity. Simple and concise wording to a known reference, and no potential for transcript errors from the zone code document into the covenant wording.

    “Construction of any structures on the Parcel must conform to Zone District U-RH-2.5 as defined in the Denver Zoning Code, Article 5, URBAN (U-) NEIGHBORHOOD CONTEXT, June 25, 2010, Republished July 6, 2015”

    If I can include wording without risk, such as the following: “ …. and any republished version of the same document”

    It was suggested that reference to a document is not favorable because zone code descriptions may change, etc.

    I would very much appreciate an opinion on the risk of specifying an accessible, published, standard, legal document such as the Zone Code as the basis for reference in the deed restriction/covenant.

    Strangely, although the street where the lots are located is on the National Registry of Historic Places, the homes are not protected by a historical designation and there is no protection overlay or limitations to over-ride the zoning.
  2. KatDini

    KatDini Well-Known Member

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    You really need to consult with a real estate attorney in your jurisdiction.
  3. Gnoto

    Gnoto Law Topic Starter New Member

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    Hi KatDini,

    Thank you very much for the reply.

    I will be consulting a real estate attorney should the plan as a whole idea seem feasible.

    Your view would be helpful for me to gauge the impact of the deed restriction reference for consideration of the overall feasibility.

  4. army judge

    army judge Super Moderator

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    Restrictive deed covenants do shoo or scare away potential purchasers.
    They can and inhibit some investors, per se.
    What you're failing to understand, and your attorney is better equipped to discuss in greater detail, fair use.
    Deed restrictions can be overcome, especially for the reasons you cite as important to you.

    However, you might wish to rethink citing the specific ordinance, choosing rather to use the legislative intent in promulgating said ordinance.

    You're on the right track, but what if the political winds change, as they so fatten do, and the ordinance is repealed?

    That's precisely why a real estate attorney is essential as you pursue your quest.

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