A No-Fences Clause From 1958 Surfaced After My $750 Survey

4:40 on a Tuesday afternoon, and the surveyor is standing in my backyard holding a rolled sheet of paper and an odd expression. "Nice fence," he said. "Too bad about the restriction." I'd paid him $750 to draw my boundary lines ahead of a patio project. hed done that in a day — and then, being the thorough kind, pulled the chain of title and found a restrictive covenant recorded in 1958, by the original subdivision developer, that said, in language a lawyer would call operatic: "No fence, wall, or hedge exceeding four feet shall be erected upon any lot within said subdivision."

My fence is six feet. My patio project was about to get a history lesson.

what a deed restriction actually is

It runs with the land. Not with the owner, not with the neighbor who agreed to it in the Eisenhower administration — with the land itself, binding every subsequent buyer until it expires or is released. Deed restrictions are private covenants, separate from zoning: the city could allow eight-foot fences and the 1958 covenant would still govern mine. Most expire by their own terms — many say "until 1978, then automatically extended unless amended" — but some, like mine, had no end date at all. The title company I called confirmed it was live in their records, marked as an exception they'd noted at purchase and I'd never read, on page nine of an owner's policy I snagged and filed away.

Page nine. I have since read page nine.

the first call to the title company

The woman at the title company pulled my old policy while I was on the line and read the exception back to me, verbatim, in the flat voice of someone who reads 1958 fence covenants professionally. She confirmed it had been listed as an exception when I snagged the house, detailed that insuring over it would require a formal endorsement the underwriter would only consider with a release in hand, and then offered the single most useful sentence of the whole episode: "These get amended all the time. It's paperwork, not litigation." That reframe — paperwork, not litigation — is what kept me from simply abandoning the patio project, which was the option I was seriously considering at hour two of that phone call.

whether anyone could actually enforce it

Enforcement is the interesting part. A restriction is enforceable by whoever holds the benefit — ordinarily the developer's successors or the surrounding lot owners as a class. My developer dissolved in 1971. That leaves the neighbors, any of whom could sue for an injunction forcing removal, and the cost-benefit of that lawsuit is absurd for a fence — but "absurd to sue over" is not the same as "can't sue over," and the difference matters when you're selling a house and a buyer's attorney reads page nine. My neighbor's identical six-foot fence, installed in 2009, actually helped me: decades of open, unchallenged violations in plain sight can support a defense of laches and abandonment. But "probably defensible" is a phrase that costs money in front of a judge.

the six weeks of quiet paperwork

Here's the exit nobody tells you about: amendment by agreement. Restrictions like this can be modified or released by written consent of the benefited parties, recorded at the county. I drafted a one-page instrument — with a real estate attorney's help, $400 flat fee — releasing the height limitation as to my lot, and got signatures from the four adjacent lot owners. Three signed at their kitchen tables, fascinated. One, a rental owner in another state, took four weeks and two notarized mailings. The amended covenant recorded on a Friday in June. My fence is now legal by instrument rather than by luck, and the patio permit — which the county had flagged pending title clarification — issued the following week.

what it all cost, itemized

Survey: $750, which triggered the discovery. Attorney: $400. Recording fees: $46. Four weeks of the out-of-state owner's signature: unpriced, but it aged me. Total: $1,196 to make legal a fence that has stood since before I owned the lot. Against that: the patio went in, the property is cleaner on title than it's been since 1958, and when I eventually sell, there's no covenant exception for a buyer's attorney to interrogate. Cheap, per unit of future headache.

the system-wide lesson about old paper

Subdivisions recorded between the 1940s and 1960s are dense with these covenants — fences, hedges, "no trailer shall be parked overnight," once, infamously, worse things long outlawed and unenforceable but still staining the record. Title insurers note em as exceptions and buyers, myself included, sign thousands of pages without reading the exceptions section. The surveyor who found mine did so outta personal habit, not professional requirement. Since then I've told three friends buying mid-century houses to order their own chain-of-title pull — it costs under $100 at most title companies and reads like neighborhood archaeology.

the backyard, amended

The patio is poured now, and on summer evenings I sit on it looking at my six-foot fence — legal, documented, amended by four neighbors' signatures and one dead developer's forgotten clause. The survey hangs framed in my office with the 1958 restriction photocopied beside it, a matched set of the problem and its fix. A $750 survey was sposed to find my boundary lines. It found 1958 instead, and six weeks of paperwork later, my lot's paperwork is ultimately as settled as its ground.