Deed Restriction

What Is a Deed Restriction?

A deed restriction (also called a restrictive covenant) is a private rule that limits what a property owner can do with their land. Unlike zoning, which is imposed by the government, deed restrictions are created by private parties, typically the original developer of a subdivision. They are recorded in the public records and "run with the land," meaning they bind every future owner, not just the person who originally agreed to them.

Florida Legal Context

In Florida, deed restrictions are enforced as contracts between property owners. Chapter 720, Florida Statutes (the Homeowners' Association Act) governs the enforcement of deed restrictions in communities with mandatory HOAs. Communities without mandatory HOAs enforce restrictions through private lawsuits between property owners.

Florida courts generally enforce deed restrictions as written, but they apply strict construction, meaning ambiguous restrictions are interpreted in favor of the property owner's right to use their land freely. A restriction must be clear, unambiguous, and not contrary to public policy to be enforceable.

Under Florida's Marketable Record Title Act (Chapter 712), certain old deed restrictions may be extinguished if they predate the root of title and were not preserved by filing a notice. However, restrictions filed by the common grantor (the original developer) of a subdivision plat generally survive MRTA.

Common Deed Restrictions in Florida

• Architectural standards — Requirements for building materials, roof types, exterior colors, and fence heights.
• Land use — Restrictions limiting the property to residential use only, prohibiting commercial activity or home-based businesses.
• Setback requirements — Minimum distances structures must be from property lines, beyond what zoning requires.
• Vehicle restrictions — Prohibitions on parking commercial vehicles, boats, or RVs in driveways or on the street.
• Animal restrictions — Limits on the number or type of animals allowed on the property.
• Short-term rental bans — Restrictions prohibiting vacation rentals, increasingly common in Florida subdivisions.

How Deed Restrictions Affect a Sale

Deed restrictions are identified during the title search and listed as exceptions on the title insurance policy. The buyer should review all restrictions before closing to ensure they can use the property as intended. A restriction that prevents the buyer's planned use (for example, a ban on short-term rentals for an investor) is a material issue that should be discovered before closing, not after.

Related Terms

• Encumbrance — Deed restrictions are a type of non-financial encumbrance
• Title Search — Identifies recorded deed restrictions
• Title Insurance — Lists deed restrictions as policy exceptions
• Cloud on Title — Disputed or ambiguous restrictions can cloud title

Barnes Walker Deed Restriction Guidance

Barnes Walker's real estate attorneys review deed restrictions as part of every closing and advise buyers on how restrictions may affect their planned use of the property. The firm also represents property owners and HOAs in restriction enforcement disputes. Request a legal inquiry for assistance.

Reviewed by the attorneys at Barnes Walker, Goethe, Shea & Robinson, PLLC