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Frequently Asked Questions

What’s the difference between a zoning law and a deed restriction?

Zoning laws (city codes) and deed restrictions are different entities and the manner in which they are enforced is different.

  1. Zoning laws are municipal or local government laws that dictate how real property can and cannot be used in certain areas. Zoning laws limit certain commercial uses of land in building in residential neighborhoods and set density standards. For example, areas zoned A1 residential have a maximum density of 4.1 units per acre. Aside from single family dwellings, the only properties allowed in an area Zoned A1 are childcare centers, bed and breakfast homes; cemeteries/mausoleums; or educational, religious, or philanthropic institutions, and then only if the city Planning Commission approves the property’s “conditional use.”
  2. Deed restrictions: Real estate deed restrictions are written into a property’s deed in the form of conditions, covenants, and restrictions (sometimes called “CC&Rs”) that set minimum standards for the property’s development and use. For example, deed restrictions may establish minimum standards for the types of buildings constructed on a property, set restrictions for the placement of buildings and fences, prohibit certain activities, etc.

The various developers/builders who developed subdivisions in the neighborhood we call Magnolia Woods established deed restrictions for the properties when they submitted their plat plans to the city for approval. Magnolia Woods consists of 16 separate filings and a scattering of properties that are not included in a filing. Because the filings were developed by different people over the space of more than 40 years, the deed restrictions have some (largely minor) differences.

Visit the Office of Neighborhoods website for straight-forward information on such topics as (a) rent houses and businesses operating in residential neighborhoods, (b) blighted property or trash; (c) speeding and parking violations, (d) loud parties or other noise, etc. The site also describes the enforcement process and gives tips for reporting

What purpose do deed restrictions serve?

Deed restrictions are aimed at ensuring that there is an aesthetic uniformity between an individual property and neighboring properties and that certain other activities are limited. Reasons for including these restrictions may be to maintain the value of a property and/or to promote good relations within a residential community.

Who enforces zoning ordinances and deed restrictions?

Zoning laws are enforced by city government. The specific city agency involved depends on which zoning law is being challenged or violated.
Deed restrictions are typically enforced in one of three ways.

  1. Architectural Control Committees (ACCs). The people most likely to enforce the deed restrictions are those who originally imposed them: the developers. They establish an ACC to review plans for exterior alterations to ensure they are consistent with the deed restrictions/property covenants for the filing. In so doing, they preserve the aesthetic values of the community and promote development and maintenance, which in turn enhances the aesthetic quality of the community and supports property values.

    An ACC may cease to exist if its members become incapacitated or move away without transferring their authority to others. The ACCs for most of the earliest filings in Magnolia Woods are likely inactive.

  2. Home Owners Associations (HOAs). When some subdivisions are developed, a home owners association (HOA) is established and given legal authority to appoint an Architectural Control Committee, thereby giving the association final approval over proposed changes to properties in the subdivision. These HOAs establish and collect mandatory fees (dues) and can take legal action against any property owner who fails to abide by the deed restrictions.

    MWCA is not a home owners association; it was established in 1993, and membership is extended on a voluntary basis to residents of all 16 filings in the community. Only the residents of Magnolia Woods filing No. 1 have authorized the MWCA to act as their ACC.

  3. Property Owners Themselves. Property owners have the right to oppose any proposed project in their filing that they believe violates the filing’s deed restrictions. It is always best that property owners resolve their differences amicably. If they aren’t successful, the next step is to raise their concern’s with their ACC.

    If the filing does not have an active ACC, the concerned residents can appear in opposition when it is presented to the Metropolitan Board of Adjustment (MOA). If all else fails, the concerned parties can file a lawsuit in civil court, seeking to stop the proposed project. Though cases that go to court are thankfully rare, there are precedents for such lawsuits in Magnolia Woods. For example, residents of the Laurel Lea filing challenged a 2012 effort to re-zone property in their filing, believing the project would greatly increase traffic and noise, and ultimately reduce their property values. The matter was heard by the City Planning Commission and was ultimately resolved without going to court.

Why bother to enforce deed restrictions?

In any individual case, adjacent neighbors may be willing to overlook a specific violation of a deed restriction, deeming its effect too small to be of concern. An issue may arise, however, when a property owner violates a deed restriction in a less acceptable and more damaging manner and the issue goes into court. In that event, the parties requesting the variance argue that deed restrictions are arbitrarily enforced by citing other examples in the neighborhood where deed restrictions were violated without opposition. Once a percentage of homeowners have violated a specific deed restriction, that restriction is no longer enforceable.

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