Reply #18: Deed Restrictions are generally enforced (Except for Race and national Origin).

[happyslug]

The rationale is that the Court can enforce Contracts, and unless the Contract is invalid on its face (Such as Race and National Origin restrictions) the courts will tend to uphold them. Through MOST cases upholding Deed Restrictions do NOT forbid any person from living on the property, instead most restrictions are how the property are to be used (Such as my example of a Deed Restriction forbidding the Selling of alcohol). Other deed Restrictions can be tied in with HOW the property was obtained, for example if someone donated land to a Church (Or other charity) the deed may state that if the land MUST be used for Church (or Charity) purposes only (Often if this is the case and the Charity can no longer use the property, the Courts will tend to permit the land to be sold without the restriction PROVIDED the money is to be used by the Charity).

Again I remind you we are NOT discussing some Zoning Law or Law forbidding someone to live on these properties, but restrictions in the DEED for the property that "Retains" a property right is the hands of someone OTHER than the person who purchased the property. Thus you have TWO sets of Property Rights, the General Right to sell the property and even to live on the property held by the buyer of the property, and the RIGHT "Retained" by the Seller to permit (and in effect to forbid) sexual offenders on the property. Remember the deed Restrictions is basically saying the buyer of the property has NO RIGHT TO SELL OR PERMIT TO LIVE ON THE PROPERTY ANY SEXUAL OFFENDER. That property right is held by someone else.

Disputes between property owners are to be determined by the Courts. If the buyer wants to sell his property to a Sexual Offender, but the person who retains the right to sell to a Sexual Offender does NOT want to sell, you have a fight between different Property Owners (Through the real property in question is the same, the two sides own different Rights to that property).

Example of such dual property rights are more common than people like to admit. For example when I Rent a piece of property I have a PROPERTY RIGHT in the house I rent. The right is ONLY for a time period (Often a month or a year, Five years for Commercial businesses) but I have property rights in the Rental property. The Landlord also has a property right in that rental unit. The Rights of the Landlord and Tenant is often set by the lease, but if there is no lease the Landlord can NOT enter the Rental Property without the Tenant's permission (that is trespassing) AND the Tenant has a DUTY to preserve the Rental Property for the Landlord. Thus both landlord and Tenant have property interest in the same piece of real estate at the same time. If there is a dispute between these property rights the dispute is handled by the Courts. Someone has to handle these disputes.

The same here, you have dual ownership interest in these properties. Both are "Fee Simple" as that term is used within the law (i.e. Full blown ownership interest). When reviewing this restrictions we must remember who has what property interests AND the exceptions to those property interests. The 15th calls for Equal Protections of the Laws, but law PERMITS discrimination against felons or any one with any type of Criminal Record. This restriction is NOT the act of the local, State or Federal Government but of the present owners of the property. The Courts have ALWAYS given greater freedom to people to impose deed restrictions than the Courts give to local, state and Federal Government when such Government wants to impose restrictions over a similar area (i.e Zoning laws). The Cases calling into play restrictions as to where Sex Offenders can live have tended to be either Zoning laws, or Penal laws NOT deed Restrictions.

My point is simple I see the Courts upholding these Deed Restrictions. I fully expect Judges who throw out Zoning and Penal law restrictions, upholding Deed Restrictions, do to the fact the restrictions is NOT being imposed by the Government, all the Government is doing is enforcing Contracts between individuals as those Contracts are written (the Deed Restrictions). One way you can look at this, is the same Courts that will strike down any RESTRICTIONS IMPOSED by the State and Local Government as excessive denial of the right to live, will UPHOLD the local Courts who are NOT imposing they will of the property owners, just enforcing what two sides have already agreed to. Just like if a Landlord wants to evict a Tenant, except in Rent Control Areas (and the only two I know of is New York City and Berkley CA). Any Landlord can evict any Tenant at the end of any term of the Lease. Due Process kicks in if the dispute goes to court, but all the court will ask, "did you agree to the term?" and "Is that term over?" and if the question to both is Yes, the Tenant will be ordered out of the Rental Unit. The Sex offender faces the same basic rule. Is he or she a Sex Offender? Does the deed clearly state no sex offender is permitted on the property? Is the present owner a Sex Offenders? Does this discriminate against other Sex Offenders? If the first two question is yes and the third is NO, The courts will remove the Sex offender (Or otherwise enforce the Deed Restrictions).