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Real property

deed restrictions

A deed restriction—also known as a restrictive covenant—is a limitation on how a piece of property can be used. Deed restrictions may limit activities on a property, uses of a property, and the type of home or building that can be built on a property.

Deed restrictions are essentially contractual promises or agreements (covenants) regarding the use of property and a buyer agrees to the deed restrictions when purchasing the property.

Homeowners’ associations (HOAs), residential subdivisions, and neighborhood and community associations often have deed restrictions on what can be placed, stored, or done on the property. Deed restrictions commonly address:

• fences (height, material)

• home businesses

• exterior colors

• motor vehicles without current license plates

• recreational vehicles (RVs)

• mobile homes

• boats and trailers

• farm animals

• yard signs

• dividing lots (for resale)

• short term rentals (Airbnb)

• setbacks (from the street)

• house sizes

• architecture (with approval required by committee)

• pets

• dues and assessments

• single-family residential dwellings only

• obstruction of neighbors’ views

• planting trees, shrubs, bushes

• other buildings and structures

Deed restrictions may be volunteered by a residential or commercial property owner in connection with a zoning change application. In that context the volunteered deed restrictions are intended to address specific conditions on the property to make the proposed zoning classification more appropriate.

Deed restrictions are usually enforceable if they are (1) reasonable; (2) not immoral or illegal; and (3) not contrary to public policy.

In Texas, deed restrictions, also known as restrictive covenants, are legally enforceable limitations on the use of property that are often established by homeowners' associations (HOAs), residential subdivisions, and community associations. These restrictions can dictate various aspects of property use and maintenance, including but not limited to the height and material of fences, the presence of home businesses, exterior colors, parking for vehicles and recreational equipment, types of animals allowed, and the size and architecture of buildings. Deed restrictions are agreed upon by the buyer at the time of property purchase and are binding. They can also be offered by property owners as part of a zoning change application to address specific property conditions. To be enforceable, deed restrictions must be reasonable, legal, and not against public policy. Violations of deed restrictions can lead to legal action by the HOA or other parties with enforcement authority. Texas Property Code and local ordinances govern the creation, enforcement, and challenge of deed restrictions within the state.


Texas Statutes & Rules

Federal Statutes & Rules

Fair Housing Act (Title VIII of the Civil Rights Act of 1968, 42 U.S.C. §§ 3601-3619)
The Fair Housing Act is relevant to deed restrictions because it prohibits discrimination in housing based on race, color, religion, sex, familial status, national origin, or disability. This federal statute may override certain deed restrictions if they are found to be discriminatory.

The Fair Housing Act makes it unlawful to refuse to sell, rent to, or negotiate with any person because of that person's inclusion in a protected class. The Act also prohibits housing advertisements that indicate any preference, limitation, or discrimination based on protected classes. Additionally, the Act makes it illegal to impose different sales prices or rental charges for the sale or rental of a dwelling because of one's inclusion in a protected class. Deed restrictions that violate the Fair Housing Act are not enforceable. For example, a deed restriction that prohibits the sale of a property to individuals of a certain race or religion would be void under this Act.

Americans with Disabilities Act of 1990 (ADA) (42 U.S.C. §§ 12101-12213)
The Americans with Disabilities Act is relevant to deed restrictions because it prohibits discrimination against individuals with disabilities. This may affect deed restrictions that limit the ability of homeowners to make modifications to their property that are necessary for accessibility.

The ADA prohibits discrimination against individuals with disabilities in all areas of public life, including jobs, schools, transportation, and all public and private places that are open to the general public. Title III of the ADA covers private places that may be open to the public, such as residential properties that offer public accommodations. Under the ADA, homeowners with disabilities are entitled to make reasonable modifications to their homes to ensure accessibility, even if such modifications might be otherwise restricted by deed restrictions. For example, a deed restriction that prohibits external modifications that are necessary for a homeowner with a disability to access their home would likely be unenforceable under the ADA.

Servicemembers Civil Relief Act (SCRA) (50 U.S.C. §§ 3901-4043)
The Servicemembers Civil Relief Act is relevant to deed restrictions as it provides protections to military members as they enter or leave military service. It may affect deed restrictions related to property ownership and usage for servicemembers.

The SCRA provides legal protections to individuals who are called to active duty in the military services. Among other things, it allows servicemembers to terminate a lease or gain protection from eviction, and it caps interest rates on mortgages and other loans. While the SCRA does not directly address deed restrictions, it may provide servicemembers with certain protections that could conflict with deed restrictions. For example, if a deed restriction limits the ability to rent out a property, but a servicemember is called to active duty and needs to rent their home, the SCRA may offer protections that could override the deed restriction.

Housing for Older Persons Act of 1995 (HOPA) (42 U.S.C. §§ 3607(b)(2)-(3))
The Housing for Older Persons Act is relevant to deed restrictions because it allows for age-restricted housing developments, which may include deed restrictions that limit ownership or residency based on age.

HOPA amends the Fair Housing Act to allow for housing developments that are specifically designed for and occupied by older persons to restrict residency to individuals who are 55 years of age or older. This Act provides an exemption to the general prohibition against discrimination based on familial status, thereby permitting communities to implement age-related deed restrictions. Such restrictions must comply with HOPA requirements, including having at least 80% of the occupied units include at least one person who is 55 years of age or older, and providing facilities and services designed to meet the physical or social needs of older persons.