Urban planning community

+ Reply to thread
Results 1 to 7 of 7

Thread: Deed restrictions:hypothetical question

  1. #1
    Member
    Registered
    Sep 2008
    Location
    New York City
    Posts
    6

    Deed restrictions:hypothetical question

    I apologize beforehand if this is the wrong forum but I didn't believe I would get as strong an answer in the Student Lounge.

    For my Land Use Law final there is a fictitious fact pattern concerning a deed restriction in a new development (built after a condemnation, urban renewal project) that allows only families with 5 of more children to buy property.

    Now I understand that restrictive covenants can cover what color you're allowed to paint your house, how many pets you have, etc. etc., as long as they are not racially discriminatory in nature. That being said:

    1- Who would have to place this deed restriction? The local government or the developer.

    2- Is there a legal foot to stand on here? Could this be considered a taking for former residents asked to move out for the redevelopment of the site.

    Thank you in advance for any help or advice

  2. #2
    Cyburbian mike gurnee's avatar
    Registered
    Feb 1998
    Location
    Greensburg, Kansas
    Posts
    2,956
    HUD plays games with provision of housing for lower income households. There is a category for provision of large family units. This usually only deals with the size of the unit. Some government could have made it a deed restriction to emphasize the large family nature, or told the developer to do so. A legal argument against it could be: who will enforce it? I doubt there is a homeowners association.

  3. #3
    Member
    Registered
    Sep 2008
    Location
    New York City
    Posts
    6
    Quote Originally posted by mike gurnee View post
    HUD plays games with provision of housing for lower income households. There is a category for provision of large family units. This usually only deals with the size of the unit. Some government could have made it a deed restriction to emphasize the large family nature, or told the developer to do so. A legal argument against it could be: who will enforce it? I doubt there is a homeowners association.
    That's what I was thinking as well. Also, what do you do when the family with 5 kids has 1 or 2 move out? Thanks for the response.

  4. #4
    Cyburbian JimPlans's avatar
    Registered
    Aug 2006
    Location
    Gone to a better place (in my mind)
    Posts
    407
    This deed restriction would make me nervous. Can it be enforced? I know that senior housing can restrict children under very specific language in the Fair Housing Act:


    Senior Housing: What you should know.


    But, I don't see how discriminating against certain families with children would be legal. I think a family without children, a family with two children, or even a single person could sue and claim that they are being discriminated against because of their familial status.

    Another general aspect of deed restrictions is their enforcement. mike_gurnee is right that without enfocement deed restrictions can be useless. Also, unless the deed restriction is properly written it can be extinguished by a foreclosure, an issue that has affected affordable housing deed restrictions in the past:

    League of Women Votors Study (word doc)

    Foreclosure and Affordable Housing: What Municipalities Don't Know Can Hurt Them

  5. #5

    Discrimination based on Family Size

    Although the FHAct was amended in 1988 to prohibit discrimination on the basis of disability and familial status, Congress intended to preserve housing specifically designed to meet the needs of senior citizens. This is the only exemption that I am aware of. Like other respondants, I am pretty sure that giving preference or refusing to house families of a specific size or individuals would be seen as discriminatory by HUD and by the hordes of lawyers who watch for such things.


    "Age has its own perqs"

  6. #6
    Cyburbian Otis's avatar
    Registered
    Mar 2002
    Location
    Upper left edge
    Posts
    3,854
    Without seeing the full fact pattern it is hard to answer. Was the condemnation for the purpose of developing housing for large families? I think the development of the property would have to be in accordance with the purpose of the condemnation.

    Regarding #1, who owns the land? If the developer doesn't own it he or she can't restrict it. If the developer is the owner, did the transfer from the government include such a restriction? If the purpose of the condemnation was to house large families, them presumably the government either put the restriction in upon transfering the property to the developer, or required the developer to do so.

    Regarding #2, in a condemnation the former residents aren't asked to move out, they are told to. Presumably they already have been compensated for the taking, which was the condemnation. If it was a typical condemnation they lost all their rights in the property and they got compensated for all their rights.

    I don't know if this kind of covenant is enforceable. It sounds like a suspect class to me, but others with experience in housing issues can respond better (and seem to have done so already).

    Just noticed the date of the original post. Sorry for coming to the game so late.

  7. #7
    Now that I have thought about it, there are limits on income in assisted housing all the time, and the limits are set based on household size. They don't have to be children, but they have to be federally recognized families so in practice they make it so that they do have limits below which people don't qualify

    Rarely, however, do they make people move out once their families become too small.

+ Reply to thread

More at Cyburbia

  1. Replies: 2
    Last post: 05 Jun 2012, 1:44 PM
  2. Can a city ban certain deed restrictions?
    Economic and Community Development
    Replies: 5
    Last post: 18 Aug 2011, 9:55 PM
  3. Replies: 2
    Last post: 17 Aug 2001, 12:02 PM
  4. Replies: 2
    Last post: 24 Feb 2001, 1:40 AM
  5. Replies: 7
    Last post: 11 Jul 2000, 6:42 AM