Legal and Practical Considerations When Restricting New Homeowner's Ability to Make Changes
When selling your home, it can be tempting to include restrictions in the purchase agreement that prohibit the new owner from making certain changes to the house. However, the legality and enforceability of such restrictions are subject to close scrutiny, and they come with significant practical challenges.
Legal Validity and Enforcement
While it is legal to include clauses in the purchase agreement that restrict the new owner's ability to make certain changes to the house, such as removing a garden, enforcing these clauses can be extremely difficult. Courts have a long-standing principle that prioritizes the rights of new owners, and they are unlikely to honor restrictions placed by the former owner, especially in matters related to personal property such as a garden.
What If the Restriction is Pre-Existing?
The question of whether a restriction can be enforced also depends on whether it is a pre-existing requirement. Often, such restrictions are specified in pre-existing documents like deeds or by the previous homeowner. However, even if a restriction is mentioned somewhere, the enforceability of such a clause is highly questionable and typically not supported by legal precedents.
Impact on Lenders and Potential Buyers
To further complicate matters, including such restrictions may raise issues with lenders. Financial institutions often have strict requirements for property valuations, and a clause that restricts the use of property in a significant way, like removing a garden, could be seen as reducing the overall value of the property.
Practical Obstacles to Enforcement
Even if such a clause were included and considered binding, the practical challenges of enforcing it are immense. The former owner would essentially need to monitor the new owner's actions and take legal action to enforce the restriction, which could be costly and time-consuming. More often, the new owner would simply ignore the restrictions, leading to a breach of the agreement without significant legal consequences.
Alternatives and Advice
Instead of attempting to restrict the new owner's changes, consider the practical implications of such a clause. It could drastically reduce the pool of potential buyers, which is detrimental to the selling process. Additionally, such restrictions go against the fundamental principle that a home is the property of its owner, allowing them to do with it as they please.
If you are attached to a particular part of your home, such as a garden, the best advice is to avoid putting restrictions in the purchase agreement. You might consider discussing any important features with the new owner or including a provision that protects the retention of personal items or modifications. This approach is more likely to be respected and adhered to by new owners.
Regarding changes to the house, purchases agreements typically do not contain clauses about changing or demolishing the house. It is ultimately up to the purchaser to decide what should be done to the house.
Covenants for Community Property
There are instances where certain restrictions are legally enforceable, known as covenants. These are often set by the entire county or city and are not limited to homeowner associations (HOAs). Covenants are generally in place to help maintain the values of the whole area but must be reasonable and transparent. For example, if the home is a national historical landmark, it might be illegal to make structural changes that alter its appearance from the street. However, more specific restrictions like removing a personal garden are unlikely to be enforceable unless they are part of a legally binding community covenant.
When selling your home, focus on realistic and legal considerations rather than trying to restrict the new owner's ability to make necessary or desired changes. This will help ensure a smoother transition and a more successful sale.