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Deed Restrictions and the Building Official

December 30th, 2010 Leave a comment Go to comments

Building officials do not enforce homeowners’ association deed restrictions.  A deed restriction is a private agreement between a homeowner and the association connected with the development.  For example, many associations have restrictions on fences, swimming pools and other outdoor structures.  It is conceivable that a person could apply for a permit to build something in violation of the deed restrictions (also known as restrictive covenants) and be entitled to such a permit.  The building official should let the applicant know that such a restriction exists if the official is aware of it but ultimately, it’s up to the applicant as to whether he or she wishes to proceed.  However, if the structure is built in violation of the building code, the building official can enforce that violation.  The remedy for a violation of a deed restriction is a lawsuit between the association and the homeowner, such as occurred in Horn v. Huffman,  2010 WL 1404414.  In that case, a homeowner knowingly violated a deed restriction by building an above ground swimming pool contrary to the deed restrictions document. The homeowners’ association brought a lawsuit to enforce the restriction which was the proper course of action.

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