Deed restriction

Key Takeaways

• A deed restriction is created by a private party, usually a developer or a seller, rather than by a government body.
• Zoning comes from government police power while a deed restriction comes from a private agreement, so one property can be bound by both at the same time.
• A recorded restriction runs with the land and binds every later owner, whether or not that owner read the documents before closing.
• In Washington a provision that restricts who may buy, occupy, or lease a property based on race, disability, or another protected class is void under RCW 49.60.224.

What It Means

A deed restriction is a private limit on how land may be used, placed there by a seller or a developer and written into a deed or into a separate recorded document. Washington course material also calls these covenants or conditions, and in a platted subdivision they usually arrive as one long set titled covenants, conditions, and restrictions.

A deed restriction is one type of nonfinancial Encumbrance. An encumbrance is any interest or right in a property held by someone other than the owner, and encumbrances split into financial claims such as a Lien and nonfinancial claims such as a restriction, an Easement, or an encroachment. A deed restriction secures no debt. It narrows what the owner may build or do: no outbuilding over 800 square feet, no short-term rentals, roof colors from an approved list, a minimum house size, no commercial signage.

The part that surprises buyers is that the limit attaches to the land rather than to the person who first agreed to it. Once the document is recorded it reaches the next owner and the owner after that. Enforcement is private as well. A neighbor bound by the same covenant or a homeowners association brings the action, not the county code officer.

How It Works in Washington

Washington runs private restrictions through the recording system. A restriction recorded with the county auditor becomes part of the Chain Of Title, and RCW 65.08.070 makes an unrecorded conveyance void as against a later purchaser or mortgagee in good faith and for valuable consideration. The practical result is that a recorded restriction reaches the next buyer while an unrecorded side agreement often does not, which is why a broker reads the recorded documents in the title report instead of relying on what the seller remembers.

Washington also caps what a private restriction may say. Under RCW 49.60.224, a provision in a written instrument that forbids or restricts the conveyance, encumbrance, occupancy, or lease of property to people of a specified race, creed, color, sex, national origin, citizenship or immigration status, sexual orientation, families with children status, honorably discharged veteran or military status, or any sensory, mental, or physical disability is void, and inserting such a provision or attempting to honor one in the chain of title is an unfair practice. RCW 49.60.227 gives an owner, occupant, tenant, or homeowners association board two ways to clear it: a declaratory judgment action in the superior court for the county where the property sits, or a recorded restrictive covenant modification document. Old racial covenants still sit in many Washington chains of title. They are unenforceable, and they can be struck from the record.

Example

Marcus buys Lot 14 in the Cedar Bluff plat in Spokane County for $565,000. The preliminary title report lists a 1998 declaration of covenants, conditions, and restrictions recorded against every lot in the plat, plus a 1953 deed for the larger parcel the plat was cut from. Two provisions matter to him. The 1998 declaration caps detached shops at 800 square feet and 16 feet in height, and requires design approval from an architectural committee. The 1953 deed says the property may not be sold to or occupied by anyone not of the Caucasian race. Marcus wants a 1,200 square foot shop, so his builder applies to the committee and is turned down. He builds an 800 square foot shop instead, because the private covenant binds him no matter what the county would permit. The 1953 clause is a different matter. It is void under RCW 49.60.224, and before he resells Marcus records a restrictive covenant modification document under RCW 49.60.227 to strike it from the record.

Common Mistakes and Exam Traps

• A deed restriction is private and a zoning ordinance is public, so a question that calls a subdivision covenant a government restriction is testing that difference.
• Deed restrictions are nonfinancial encumbrances because they limit use rather than secure a debt, which is what separates them from a lien.
• A recorded restriction runs with the land, so it binds a buyer who never signed it and never negotiated it.
• A racially restrictive covenant in an old Washington deed is void and unenforceable, not merely outdated, and trying to honor one is an unfair practice.