February 22, 2001
By: George Coppolo, Chief Attorney
You asked what type of penalties might be imposed on someone who violates a deed restriction. Our office is not authorized to give legal opinions and this memo should not be considered one.
A person injured by a violation of a deed restriction can go to court to seek an injunction against the violation. An injunction is a court order requiring someone to do something or to stop doing something. The person seeking to enforce the deed restrictions must have the legal right to do so.
In the scenario your constituent describes, where an apartment owner cut down trees that served as a buffer zone between the apartments and neighboring homes, a judge might order the owner to replace the trees or fashion some other appropriate buffer zone. But if he determined that enforcing the deed restriction would be inequitable, unjust, or not in the public interest, he could order the owner to pay money damages to the people injured by his actions. The injured parties would bear the burden of proving their economic losses.
ENFORCEMENT OF DEED RESTRICTION
Equitable principles govern the enforcement of deed restrictions. Thus, a court will not enforce a deed restriction if it determines it would be inequitable and unjust to do so, and not in furtherance of the public interest. What injunctive relief a court will grant is within the court's sound discretion and determined by all the facts and circumstances. Courts will enforce deed restrictions where the intention of the parties is clear in creating them and the restrictions are reasonable. But where the right to relief is doubtful, equitable enforcement will be denied. If the consequences of enforcement to a defendant would be inequitable, the court could award the person seeking enforcement money damages. The injured party would bear the burden of proving his economic losses.
As a general rule, a restriction may be enforced irrespective of the amount of damages that would result from the breach. Thus, enforcement is possible even where there are no substantial monetary damages caused by the violation. Put another way, the right to enforce a deed restriction does not depend upon whether the person seeking enforcement will suffer financial loss by the breach; the mere breach is enough for a court to grant an injunction. For example, restrictions as to the nature, location, or use of buildings will be enjoined even though no substantial monetary damages are shown.