Real Estate Q & A: Buyer can terminate deed restriction

Adam D. Martinez, Esq. | Chairman of Real Estate Litigation Department

Question:  I am a developer and recently purchased four lots in a Phoenix neighborhood. Each lot is one acre. The original owner of the lots also owned a fifth adjacent lot that is currently owned by an individual who has lived in a home on her lot for decades. When the original landowner divided the land into five lots, he also recorded a deed restriction that prohibits the construction of two-story homes on any of the five lots. Prior to purchasing my four lots, I asked the current owner of the fifth lot about constructing two-story homes and she stated she would not have any objection. How do I document her waiver of the deed restriction?

Answer:  The primary way to terminate a deed restriction in Arizona is to have the beneficiaries of the restriction sign and record a document with the county recorder expressly terminating the restriction. Another way to terminate a deed restriction is by “merger,” i.e. purchasing all the property subject to the restriction. Here, because you already have the agreement of the owner of the fifth lot, the best way to terminate the restriction is for you both to simply sign and record a document terminating the deed restriction.

Note: In some cases, even if a deed restriction exists, the language of the restriction or other circumstances may prevent the restriction from being enforced.

Adam Martinez is the Chairman of the Real Estate Litigation Department at Rose Law Group pc. and can be reached at amartinez@roselawgroup.com.

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