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” https://repositories.lib.utexas.edu/handle/2152/21232 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.

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