How Deed Restrictions Can Impact Our Land Development

Most of Austin’s zoning regulations prevent the construction of missing-middle housing like townhouses, duplexes, and fourplexes.  In fact, according to the Imagine Austin Comprehensive Plan land inventory about 80% of Austin’s land zoned for residential use is zoned single-family. But zoning regulations aren’t the only obstacle to these types of housing, especially in wealthy west Austin neighborhoods.  Another type of restriction, deed restrictions, can also serve to prevent the construction of anything but large, expensive, single-family homes.

Deed restrictions are by definition private agreements that restrict the use of real estate in some way, and are listed in the deed. The seller may add a restriction to the title of the property. Often, developers restrict the parcels of property in a development to maintain a certain amount of uniformity.

The history of deed restrictions in the United States is murky and by some accounts  goes as far back as the 17th century. The early deed restrictions were used to separate land uses which were considered nuisances such as industrial or animal husbandry from residential, but in the late 19th to early 20th century deed restrictions increasingly became not just a tool to separate land-uses, but a means to preserve property values by dictating specifics such as what type of residential building could be built or the minimum lot size was allowed. 

Like most American cities,  throughout the 20th century Austin grew and evolved outward from the center into various neighborhoods as developers platted chunks of land big and small into subdivisions and created restrictive covenants for each particular subdivision as they saw fit. Some developers chose to restrict the number of homes that one could build on a lot, some chose to allow only one-story buildings, while some spelled out how a garage or a storage shed were to be attached to the primary building structure.  Some restricted who could or could not buy a house in the subdivision based on the color of their skin or their religion.

Although racist deed restrictions were eventually deemed unconstitutional,  it is a widely accepted fact that under the guise of “protecting property values” many of the restrictive covenants that were used during the 20th century were meant to elevate the value of the property and to keep out lower-income earners which often translated to people of color.  

While lecturing at the University of Texas at Austin, Eliot Trettor, who is currently a professor at the University of Calgary, published a report called “Austin Restricted” where he examined the effect of racial deed restrictions on Austin’s geographic segregation. In the course of writing this report Eliot worked closely with the Travis County clerk to create maps of Austin’s various deed restrictions, some of which were put in place not only for overt racist purposes, but also to restrict land use and development, such as the deed restrictions we typically deal with today.

Map of Land-use deed restrictions from Eliot Tretter’s Austin Restricted.

As is immediately obvious from the above map, most of the land use deed restrictions exist West of I-35, which has been a traditionally whiter, wealthier part of town with a lot of political clout and control over its land. However, when comparing the land use deed restriction map with the map of the areas most vulnerable to displacement (see below) it is immediately apparent that the more vulnerable areas have few to no land use deed restrictions. In fact if one were to superimpose the maps one  would see a stark geographic contrast between the areas experiencing displacement and areas with restrictive land use covenants.

Deed restrictions are essentially private zoning;  they do not fall under city regulations, but are legal instruments which are protected and enforced through the courts by the residents of a subdivision where the deed restrictions apply. The City of Austin explicitly states that they do not pay attention to or enforce deed restrictions. When a developer or a homeowner submits a project for permitting, deed restrictions are not a part of the city’s review process.

Deed restrictions on older properties are hard to track down. The original documents often get lost as the property changes hands over the decades. The research for old deed restrictions involves trips to the Travis County Clerk’s office where one can look up information on the in-house computer if the deeds for the particular area have been digitized, or look through microfiche if they haven’t. Needless to say, it’s not something most people have time or desire to do.

Although they vary in language, most deed restrictions restrict the number of homes or the type of home that can be built in a particular area and are most often far more restrictive than the City of Austin zoning for the same property. While not all neighborhood associations are active in defending deed restrictions, some are very protective of their restrictive covenants. 

Because of the laborious process to find relevant deed restrictions, many homeowners don’t even know that restrictions on their property exist. However, some areas of Austin have the means and the will to enforce their deed restrictions and take anyone to court who dares break them.  Neighborhoods like Allandale, Crestview, Brykerwoods, and Tarrytown are known for keeping a close eye on anything that does not comply with their deed restrictions and they are not afraid to go after developers and homeowners to enforce them. There have been lawsuits over deed restrictions in Allandale, Crestview, and Tarrytown where homeowners and developers had to tear down ADUs and duplexes or delay their project by months and incur high legal fees. 

Below is en excerpt from the 2009 Allandale NA newsletter:

“Attention to deed restrictions and resubdivisions in Allandale heightened with efforts to split up lots on Woodview, Montview and Shoalmont. They are separate cases but the end result would be a doubling of lots, from 5 to 10. Neighbors are opposed because they violate the amended deed restrictions which prohibits re-subdivisions without prior written approval of [66 ⅔] (%?) of the homeowners in the Shoalmont Addition. As Lorinda Holloway, one of the neighbors in the area contesting the subdivision states, ‘re-subdividing negatively impacts our property values, increases traffic, creates parking and safety challenges, increases impervious cover, and destroys the large lot style of the neighborhood’.” 

Sign in the Allandale Neighborhood lawn.

Similar efforts have taken place in other parts of town. A homeowner in Brykerwoods, who happens to be an attorney,  posted the following on Nextdoor:

“I will sue any owner in my neighborhood in violation of deed restrictions, it seems to me millennials are completely unaware of deed restrictions these days and think they can build whatever they want with a zoning change. If a lot says only a single family home can be built, then only a single family home can be built.”

And here is another, more recent example, of a restrictive covenant from the Barton Creek North HOA:

The text in the image reads: “The Barton Creek North subdivision was developed with very stringent deed restrictions to ensure everlasting beauty and continuity.  In order to ensure that property values are maintained and consistent design guidelines are applied, the Barton Creek North Property Owners Association relies on our resident volunteer Architectural Control Committee and the expertise of architectural professionals. Each of our eleven gated communities is governed by their own unique set of deed restrictions.  For example, properties located on golf courses are subject to buffer zone setbacks that require special attention, while other properties have condominium restrictions or specific landscape materials requirements.”

From a legal perspective, the city’s best path is to ignore deed restrictions when issuing building permits. However, from a moral perspective, the city cannot afford to ignore deed restrictions when planning for the future.  The question we and our city leaders should ask is not whether the city should or should not enforce deed restrictions, but whether with the new LDC the most vulnerable areas of Austin will continue to bear the brunt of growth and development while the traditionally wealthier neighborhoods protect themselves from redevelopment and  remain affluent single-family enclaves. 

The City Council must take a decisive moral stand for equity and demand a far higher housing yield from areas of high opportunity which have until now maintained their single-family zoning status. Furthermore, the City Council should direct staff to examine deed restrictions in the high opportunity areas and provide flexible building rules in those areas in such a way as to provide maximum yield within the constraints of the restrictions. These could be, for example, allowing four detached single family homes rather than attached fourplexes, or allowing for smaller setbacks, or more flexibility with impervious cover, FAR, or even trees.

How many affordable old houses are there in Central Austin?

As of June 20th, 2019, the Austin Board of Realtors (ABoR) reports that the median price for single-family homes in Austin has hit an all time high of $400,000.

We often hear from City Council  that we need to save the “affordable” old housing stock in the urban core from demolition and redevelopment. Typically, they are referring to single family homes. Given this perspective, it’s worth asking how many affordable single homes are there in Central Austin?

For the purposes of this analysis, we will define the urban core as the area bound by MoPac to the West, 290 to the south, and 183 to the north and east. The year defining “old” housing is homes which were built in or prior to 1970. Affordability is based on the 2018 Austin median income for a family of four of $86k per year. Data is compiled using the Austin Board of Realtors Multiple Listing Service.

For starters, below is a broad overview showing the median and average prices for homes in the urban core built before 1970 as of May 1, 2019.

120 homes in urban coreMinimumMaximumAverageMedian
Current home prices$229,900$8,500,000$825,318$546,500

Using the rule of thumb that no more than 30% of gross monthly income should be used on housing, a family of four earning the median family income can afford to buy a $360K house (according to the mortgage affordability calculator) or rent one at $2150/month.

Let’s take a look at homeownership first.

As of May 1st, 2019, there were a total of 35 single-family homes built before 1970 available for sale for $360K or less and only two of those were west of I-35. The map below shows the distribution of available single-family homes at this price point. Notably, none of these homes have been updated for today’s energy efficiency and the status of the wiring, plumbing, and foundation is unknown. See Fig. 1

Fig. 1

If we consider that a family of four would likely need at least three bedrooms, the number of available homes drops to 22, all of which are concentrated on the fringes of the urban core mostly east of I-35.

Fig. 2

Of these houses, only 13 are outside the identified FEMA flood zone…

Fig. 3

and only 15 have Central A/C.

Fig. 4

The situation for single-family house rentals is very similar. Given a family of four earning the median income, the maximum suggested monthly rent should be no more than $2150/month. As of May 1st, 2019, there are 36 single family homes with at least two bedrooms available for rent in Austin’s urban core.

Fig. 5

However, there are only 14 three-bedroom houses available at the rent level affordable for the median family income.

Fig. 6

Finally, the multi-family affordable housing is becoming less and less available to families of 4 at the median income level. As of May 1st, 2019 45 apartments with at least two bedrooms are available across the urban core of Austin.

Fig. 7

And only four of these have a minimum of 3 bedrooms.

Fig. 8

Given that the Austin metro area is adding 105 people a day, preserving older single-family homes will not meet our housing needs in a way that is accessible or affordable for even the median income Austin family. A far more sustainable strategy for enhancing affordability in the urban core would be to add new homes with more units, like fourplexes, townhomes, and other missing middle housing types.

How Multiple Business Districts Can Hurt Dual-income Families

Activity Centers as described in Imagine Austin are akin to the Multiple Nuclei Model for a city layout created by Chauncy Harris and Edward Ullman in the 1945 article The Nature of Cities.  Harris and Ullman argued that cities do not grow a single nucleus but several separate nuclei. Each nucleus acts as a growth point.  Because of increased car ownership, people can live in less-dense single-family style neighborhoods near the nuclei containing their job and thus avoid unreasonably long commute time.

Many cities have intentionally or unintentionally developed according to the nuclei model, Houston, in particular, comes to mind. However, while these cities do indeed have multiple growth points and relatively low-density housing, these features have not resulted in the expected reasonable commute times for several reasons.

Most important, typical households today consist of two earners, often in different fields, ie both spouses have different jobs in different locations but live in the same house. Because the two partners will have different jobs in different fields they will likely have to commute to different business centers from the same house. This couple will have to choose which job will be closer to home and likely require the other to have a much longer commute, with all the impacts to quality of life and the environment that follow.

It’s not surprising that Harris and Ullman missed this now obvious fact while writing in 1945 when the idealized and typical household was a single-earner family, ie the husband had a job and the wife stayed home. But that fact should give us pause if we intend to rely on separate job centers to solve our housing shortage and transportation issues. These separate job centers will be unlikely to provide both earners the opportunity to work and live one area and enjoy the access to jobs and amenities like daycare within the short commutes that are necessary for cultivating a successful career and raising a family today. Unfortunately, today that is still most likely to disproportionately impact working mothers.

The activity centers described in Imagine Austin are an important part of our growth plan, but cannot serve as the only or even the essential part of housing and transportation solutions we create in our new land development code. If we really do want to open up opportunities for everyone to grow both a career and a family, we have to ditch the multiple nuclei theory of cities and instead encourage and allow dense concentric development, especially missing middle housing and transitive supportive density close to downtown as the most efficient and environmentally sustainable way for a city to grow.