How can I legally prevent the next owner of my house from tearing it down?
January 20, 2009 1:21 PM   Subscribe

I will be moving on and selling my current house some time next year. In my neighborhood (mostly 1930's bungalows) a lot of similar houses have been purchased by developers, bulldozed, and replaced with McMansions far out of scale with the neighborhood. What can I legally do as part of the sale to prevent it from being Yet Another Teardown?

Right up front:
- I know you may not be a lawyer and you definitely are not my lawyer
- I am in Georgia, but I would appreciate perspective from anywhere
- I realize that redevelopment activity has calmed down a lot in the past couple years
- please no derails into the politics of McMansions etc. or pointing out the hypocrisies

I can simply choose to only sell to people who are going to actually live in the house, meaning not sell to developers. Is that legal? For example, it's against federal law to discriminate based on race etc. Is it legal for me to refuse to sell to someone who has met my listed price simply because I'm suspicious of their intent?

Assuming it's legal, and I went through with it based on who the buyers are, I still would be relying on the good faith of the buyer, and I'd rather not rely on people I really don't know. I'd like to have it in writing.

Is there a legal way to prevent the new owner of the property from tearing it down as soon as they own it? A lien or some other document attached to the deed? I wouldn't be holding that over them forever, probably 2 years or so, so it would be something that would expire, or I'd file to have the constraint removed or whatever you'd call it.

Yes, I will be consulting actual professionals as I do this, starting later this week in fact, but I want to first find out what the jargon is for this kind of thing and generally how it's done.
posted by intermod to Law & Government (22 answers total)
Due to its potential significance as a historic structure, it might be worthwhile to investigate whether your house is eligible for enrollment in the national or city historic register. Historic registration of a property necessitates compliance with fairly strict preservation guidelines for any future owner or developer of the property.

posted by teamparka at 1:39 PM on January 20, 2009

If your home is in a historic neighborhood or could qualify as a landmark, the applicable jargon includes the word preservation. Advertising the sale of your home to preservation-minded groups could get your more buyers interested in living in and possibly restoring a historic home.

If you want to sell to someone with the condition that they not tear it down, you would be selling the home with a stipulation. I have read of homes being sold for $1 with such a stipulation.
posted by PY at 1:40 PM on January 20, 2009

And further, specifically.
posted by teamparka at 1:41 PM on January 20, 2009

In Toronto you could probably try and get it declared a heritage building, or something like that. Beyond that though? Asking them nicely not to. If someone buys your house, you really don't have much say in what they do with it after the fact.
posted by chunking express at 1:42 PM on January 20, 2009

Want you want is a historic preservation easement.
A historic preservation easement is a legal agreement that enables a historic property owner to establish certain preservation restrictions while retaining possession and use of the property. There are two general types of historic preservation easements: facade and interior space.
Facade preservation easements permanently prevent demolition, neglect and insensitive alterations to the exterior facade of a certified historic structure. Facade preservation easements must preserve the entire building exterior, including the space above the building.
Interior space preservation easements permanently prevent demolition, neglect and insensitive alterations to a specified interior space of a certified historic structure.

By donating a historic preservation easement in perpetuity to Preservation Easement Trust, a qualified 501(c)(3) nonprofit charitable organization, the property owner promises to maintain the easement-protected property while adhering to the easement restrictions. Once donated, a preservation easement becomes part of the property's chain of title and permanently remains with the historic property binding both the present and future owners.
From: Preservation Easement Trust

There are any number of local nonprofit preservation organizations that do this, some that do only this. Get in contact with local preservationists, they will know who to direct you to.
posted by Steve_at_Linnwood at 1:54 PM on January 20, 2009 [2 favorites]

Property was never my strong suit, but you might be able to make this work with some sort of covenant or easement, but it might be more straightforward to simply transfer the land subject to condition subsequent... the condition being that they don't tear down the house for X years.

There are a number of ways to do this, I think, but the logistic and tax implications will complicate the sale quite a bit. It's something that a real estate attorney can really go over with you in more detail.
posted by toomuchpete at 1:56 PM on January 20, 2009 [1 favorite]

Also, as a side note, getting you home listed on the National Register of Historic Places will not prevent your home from being razed. A shocking number of buildings on the National Register get torn down. It is just a list of "historic places worthy of preservation" and nothing more.

Only local landmark laws can prevent tear-downs.
posted by Steve_at_Linnwood at 1:59 PM on January 20, 2009

I am not your lawyer, nor do I have experience with Georgia law.

Steve_at_Linwood is right; there may be a nonprofit in the area that can help you. If there isn't, or if they don't want your house, and guessing from the other McMansions that you don't live in a neighborhood with an association, what you're probably looking for is called a deed restriction.

This is how all those suburbs of almost identical-looking houses come into existence and stay looking almost exactly the same for decades -- when they bought their houses, the deed basically made them promise, at the same time, they wouldn't paint the house lime yellow, that they wouldn't sell alcohol on the premises, that they'd check with the neighborhood association before making renovations, etc. Restrictions saying that no houses will go to people of a certain race, from what I recall, verboten, and there are some other issues, but otherwise, deed restrictions are very, very powerful tools.

In your case, there might be a section in your deed to the effect of, "No building more than [square footage that precludes the building of a McMansion] shall be built for two years."

My guess is that the hard part is going to be tricky drafting one that is enforceable -- what do you want to happen if they do break their promise? The fact that you don't intend it to last forever makes drafting easier, but do you want them to pay an exorbitant amount of money? Do you want to be able to go to court and force them to not build it or, alternatively, tear it down if they've built it?

Exploring those questions is something only your lawyer, experienced in Georgia law, can do. If you're serious and don't have the historical preservation option, get one.
posted by joyceanmachine at 2:01 PM on January 20, 2009

This is a long shot for historic preservation. We're not talking about a graceful mansion that belonged to an influential dynasty in the 19th century, we're talking about one of a number of neighborhood houses built during the Depression. I'm sure it's a lovely house, but it's not fodder for this kind of program, and more to the point, that'd completely tank your resale value. Once a house is preserved, you really can't do much with it. Even replacing the countertops would be really difficult. As a result, most people try not to buy homes that have been preserved.

What you can do is establish a restrictive covenant. There are all sorts of restrictions on land use, and private restrictions imposed by sellers are very common. Granted, they're usually in condo associations or homeowners associations, but there isn't any reason beyond an adverse affect on your saleability that you couldn't do that.

What you'd probably want the covenant to say is that the new homeowner is prohibited from tearing down the house for a period of X years (ten or something would be good) or the property automatically reverts to your possession. You don't necessarily want the property then, but that's a pretty big disincentive for a potential developer, no? You probably don't want it to say "forever" because at some point the house will probably need to be torn down, but even a small length of time will probably discourage developers.

The specifics of getting that done would indeed require a licensed Georgia attorney, but this is probably what you're going to want to do.
posted by valkyryn at 2:02 PM on January 20, 2009 [1 favorite]

Your home does not have to be "graceful mansion that belonged to an influential dynasty in the 19th century" to give a preservation easement. Your bungalow may not special enough to get on the Nat. Register, but you people are interested in preserving them, especially neighborhoods of them.

Appeal to authority: My girlfriend is an Architectural Historian / Preservationist, and this is regular dinner table conversation for us. A classmate and friend of her's works for The L'Enfant Trust in Washington D.C., and preservation easements is all they do.

From their website:

Does My Building Qualify?
Generally, a property either listed on the National Register of Historic Places or granted Part I Certification (greater than 50 years old & in a registered historic district) will qualify for the tax deduction associated with donation.

So, as long as your home is 50 years or more old, you should be good.
posted by Steve_at_Linnwood at 2:08 PM on January 20, 2009

To answer your other question, developers are not a protected class under the constitution, so unlike other buyer characteristics (like race or religion), you can decide not to sell to them purely because they are developers.
posted by *s at 2:43 PM on January 20, 2009

Echoing that you don't have to sell to a person just because they have the money. This is based on my experience volunteering in a gentrifying neighborhood.
posted by desjardins at 2:50 PM on January 20, 2009

There is a form of title deed that allows you to set conditions on the land and/or building usage. But remember then you are no longer selling the property freehold. If market-forces prevail, you will never get anything like the 'full' price for the property because you aren't selling the full property (ie you're not selling the right to do what they want with it).

Even home friendly, regular folk will shy away from it because they in turn will have trouble selling it later.
posted by Xhris at 2:53 PM on January 20, 2009

I would be worried that it would be valued at less because of the deed restriction, so even if the buyer was OK with that, it would be harder for them to get a mortgage.
posted by smackfu at 4:17 PM on January 20, 2009

Even home friendly, regular folk will shy away from it because they in turn will have trouble selling it later.

This really depends on the length of time associated with the restriction. Obviously an indefinite restriction would absolutely tank the land's value, but one for 2 or 5 years might not be nearly so bad, especially if the restriction was chosen in a way to provide a lot of latitude for the new buy but still discourage McMansions.
posted by toomuchpete at 4:20 PM on January 20, 2009

I do agree that there will likely be some kind of an impact on the price you receive, perhaps significant; or it might just drive buyers off. As a potential buyer, even one who had no intention whatsoever of doing anything but cherishing the home, I would look at this kind of covenant or easement and say, What if, for some unforeseen reason, this impacts me? Like, I don't know, I find some kind of heretofore unknown structural defect that is so severe that my only options is to tear down. Now maybe these documents can be written up in such a way to prevent this sort of misunderstanding, but my guess is that anything that is tight enough to keep a developer from doing his dirty deed is also going to cause a legitimate buyer some serious second thoughts. And, yes, perhaps someone issuing a mortgage, too. In this skittish market, that could cause you serious problems.

On the other end of things: I don't know how true this is, as IANAL. But not long ago I worked at a small town hall for a lawyer who was the zoning officer. She had cause to interact with some easements--in this case, keeping undeveloped property--and told me that, in general, no matter how well-written, these easements are really hard to enforce over the long term, and that a good lawyer can get one sunk. I was always a little skeptical of this. Maybe she specifically meant "in the case of developments where tight clustering is allowed in exchange for the developers setting aside a chunk of acreage", as many easements she handled were of this type. And it's a different type of usage that's being prevented. It's something to consider, though.

In the end, although I totally admire your motivation, I think you may be trying to hold more control over this property than you can ever truly have. You may just have to let go, at some point. You can vet the buyers as best you can for their intentions, but in the end, if you don't own it you don't own it, and shit can happen.
posted by Herkimer at 5:40 PM on January 20, 2009

* keeping undeveloped property undeveloped
posted by Herkimer at 5:42 PM on January 20, 2009

My ex and I bought a house in Boston that had been on the market for nearly two years (and this was in 2001!). The sellers had been raised in the house and had turned down multiple offers from developers who wanted to tear down and build two three-deckers on the oversize lot. At closing, the daughter hugged me and started to cry; they held out until they found someone who was planning to live in it. The downside was that they then kept dropping by and telling us not to tear out Mother's favorite plants, until we contacted their real estate agent and had her explain that, y'know, they'd SOLD the house so it wasn't theirs any more.

However: my ex held a real estate license in Georgia for a few years, and he was very surprised that our Boston seller could accept whatever offer they wanted to take. It was a salient part of his training course that, in Georgia, if a buyer offers full list price, the seller must take it (to prevent racial discrimination and other "let's keep the neighborhood for people we think will fit in" reasons). Be very careful what you do in the name of the house; as Herkimer says, it may jsut be time to let go.

Depending on where you are in Georgia, the historic preservation stuff can be quite difficult; I live in an Atlanta neighborhood much like the one you describe, and while the local homeowners association likes to play at historic preservation, their influence is primarily on the zoning board for upgrades and improvements).
posted by catlet at 6:52 PM on January 20, 2009

Thank you everyone for the excellent answers so far!

valkyryn is right in noting that historic preservation wouldn't work in my case. This is just a modest little bungalow, in a neighborhood that has lots of character but doesn't really rise to the level of historic. Of course the other observations about the historic/landmark designations being worthless in this case anyway are noted too.

As toomuchpete and joyceanmachine noted, the language I'm likely looking for is "covenant", "easement", "deed restriction", etc. Thanks smackfu for the heads up about the possible mortgaging complication. And, on preview, thanks catlet for the warning about there possibly indeed being legal constraints in Georgia; it wouldn't surprise me, as this state is extremely friendly to development (read: no contractor licensing, enforcement, etc.).

I'll educate myself and bring all this to the table when I go talk to a real estate lawyer.

I have one followup question: do any of these mechanisms prevent the new owner from doing massive "renovation" work? Does a "deed restriction" play into whether the city issues a building permit for the renovation work? I'm thinking of the case where the new owner doesn't actually sell the property on to a developer, but instead reworks the house themselves. I know it is common, both in the US and abroad, where someone can call it a renovation (and dodge the deed restriction?) simply by keeping a wall or the foundation, but otherwise blowing the whole house away and starting virtually from scratch. Ta-da, eyesore. Happened just around the corner from me ...

Thanks again and I'll keep monitoring this for more answers!
posted by intermod at 7:14 PM on January 20, 2009

Honestly, I think that the only foolproof way to keep your house from being plowed over is to actually cough up the bucks to make sure that
(a) plumbing, wiring, heating, etc meet modern standards
(b) the foundation is solid, the roof is sound, and
(c) all areas of your home have been professionally updated in the style that you wish to uphold.

All this costs money, of course, and this should be reflected in the cost of the house. Once you have done this work it will be cost-prohibitive to buy it as a tear down and more appealing for sale as a turn-key character home. The market is your best bet for self preservation.
posted by crazycanuck at 9:02 PM on January 20, 2009

It's a fascinating subject. Like what happens if the person just says "screw this" and wrecks the place? Who is responsible for enforcing deed restrictions? This makes it sound like you need someone watching out for you, like a neighbor or a land trust (for land preservation).
posted by smackfu at 9:07 PM on January 20, 2009

Your restrictive covenant can say anything you want so long as it doesn't violate the law or constitution. If you want it to say "The outside of the house must always look like it does at this date and in the event of a disaster only a house that looks like the current structure can be rebuilt here" then it can say that. You'll want a lawyer to draft the language and you'll probably get less for the house. Of course anything's hard to enforce in the long run, but that should scare off anyone not interested in the house itself, especially in this real estate market.

The city probably doesn't care what restrictions you place on the home when they issue building permits, but you can maintain a reversionary interest in the house, that is, if the future owner (or anyone after that) violates the covenant, you get the house back. That should be incentive enough to not mess with the exterior (or whatever else you want protected). I think you can theoretically have the covenant run forever, and your heirs would maintain the reversionary interest, but might be wrong.
posted by the christopher hundreds at 9:19 PM on January 20, 2009

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