Is That Old Deed Restriction Still Binding on Your New Jersey Property?
Buying a home or a parcel of commercial property in New Jersey often means inheriting more than just the land itself. Tucked into many deeds are restrictive covenants, private promises about how a property can or cannot be used. Can a covenant written decades ago still control what you build today? Does it matter if the original parties to the agreement are long gone? These questions come up often, and the answers depend on how the covenant was written and whether it still serves a legitimate purpose.
What Exactly Is a Restrictive Covenant?
A restrictive covenant is a written promise, usually found in a deed or a separate recorded document, that limits how real property may be used. These covenants can address building height, permitted business activities, architectural style, or even how close a structure may sit to a property line. Because covenants are meant to run with the land, they generally bind not just the original owner but every future owner as well. That permanence is exactly why buyers should review title documents closely before closing on a purchase.
When Will New Jersey Courts Enforce a Covenant?
New Jersey courts have historically shown little hesitation in enforcing deed restrictions, sometimes even ordering that a noncompliant structure be removed. Enforcement, however, is not automatic. A covenant generally needs to describe the restriction clearly, identify the property it burdens, and remain reasonable in scope. Courts have also stepped in to modify or dissolve covenants when circumstances change so dramatically that the original purpose can no longer be achieved, such as a once-residential block transforming into a commercial corridor over time.
A Notable Category That Cannot Be Enforced
Not every restriction survives scrutiny. New Jersey law expressly voids covenants that limit ownership or use of property based on protected characteristics under the state’s Law Against Discrimination, N.J.S.A. 10:5-12. Legislation adopted in recent years went further, requiring associations and property owners to actively remove this kind of unlawful language from governing documents and deeds. A property owner who discovers such a covenant is not stuck with it, and in fact has a formal process available for releasing it from the record.
Steps to Take Before You Buy or Build
Anyone considering a purchase, renovation, or new construction project should ask a few practical questions early:
- Does the deed reference a recorded covenant or declaration of restrictions?
- Is the restriction still consistent with current zoning and neighborhood use?
- Could the covenant affect financing, resale, or future development plans?
Answering these questions before closing can prevent costly surprises after the transaction is complete.
Talk to Our Team Before You Sign Anything
Restrictive covenants can be straightforward or surprisingly complicated, and their impact on your plans for a property is not always obvious at first glance. We help clients review, interpret, and when necessary, challenge these provisions so they can move forward with confidence. Our Summit real estate attorneys at Dempsey, Dempsey & Sheehan are prepared to discuss your case in depth today.
Source:
law.justia.com/codes/new-jersey/title-10/section-10-5-12/
