Your development’s deed restrictions: when they bind and how they go

It is Section Two of Chapter III of Title III of Book Three of the Civil Code of 2020, Articles 813 to 819. Unlike the legal restrictions, which the law imposes on every property, these were created by someone: the developer or the neighbours themselves, and they were written into the deed and into the Registry.

It applies to lots encumbered with limitations of use, construction and ornament or analogous purposes. The interdicto or the declaration of modification or extinction may be sought by the owner or the holder of a real right over the encumbered lot.

• That the restriction be reasonable.Verified against the official source
• That it obey a general plan of improvements.Verified against the official source
• That it be compatible with public policy on land use.Verified against the official source
• That it appear specifically in a public instrument.Verified against the official source
• That it be recorded in the Registro de la Propiedad.Verified against the official source
• That it be constituted by a bilateral or multilateral juridical act of all the owners of the affected lots, or by a unilateral juridical act of the affected lot’s owner.Verified against the official source

• The public instrument where the restrictions appear specifically.
• The recording in the Registro de la Propiedad, without which they are not effective against all.

1. 1

   Step 1: What they are, exactly

   Voluntary restrictions of a real character are those limitations of use, construction, and ornament or analogous purposes imposed on lots that meet the Code’s five requirements. "Of a real character" means they travel with the lot, not with the person: they are still there when the owner sells.

2. 2

   Step 2: The five requirements, all at once

   For voluntary restrictions over lots to be valid and effective against all they must be reasonable; obey a general plan of improvements; be compatible with public policy on land use; appear specifically in a public instrument; and be recorded in the Registro de la Propiedad. The Code lists them together and without hierarchy: they are cumulative. A restriction that does not appear specifically, or that never reached the Registry, does not comply.

3. 3

   Step 3: Who may create them

   In two ways: by a bilateral or multilateral juridical act entered into by all the owners of the affected lots, or by a unilateral juridical act of the affected lot’s owner. The second is the developer’s classic route, imposing the conditions before selling the lots.

4. 4

   Step 4: Splitting the lot does not dilute them

   Voluntary restrictions are indivisible. If the affected lot is divided into two or more lots, the restriction is not modified and each of them also remains affected. Subdividing is not a way out of them.

5. 5

   Step 5: How they are enforced

   The owner or the holder of a real right over a lot encumbered with voluntary restrictions may bring an interdicto in the competent court to prevent their violation and obtain indemnification for the damages suffered. The Code names the interdicto without setting out its procedure, and we do not set it out here.

6. 6

   Step 6: The six causes to remove or change them

   Voluntary restrictions may be modified or extinguished: in the form and for the causes provided in the juridical act that establishes them; by unanimous agreement of the interested parties, whether by eliminating them wholly or partly or by constituting new restrictions that alter the earlier ones; by the effect of time or by the fulfilment of the condition, if so constituted; by renunciation or abandonment by the owners who receive the benefits, through conduct showing an intention to renounce or abandon them; by expropriation, if the restrictions are incompatible with the public use of the expropriated lot; and by radical changes in the neighbourhood.

7. 7

   Step 7: Abandonment and radical changes

   These are the two causes most invoked in old developments and the two the Code leaves most open. Renunciation or abandonment is proven by conduct of the benefited owners showing the intention to renounce or abandon: that is, if for years nobody enforced the restriction while everybody breached it. And radical changes in the neighbourhood are exactly that, without the Code defining how many years, how much change or with what proof. We do not invent a test the law does not give.

8. 8

   Step 8: The court must be asked

   The owner or the holder of a real right over a lot encumbered with a voluntary restriction may ask the competent court to declare its modification or extinction, if one of the six cases arises. It is not enough that the cause exists: the declaration must be requested.

The interdicto and the declaratory action for modification or extinction are filed in the competent court. The constitution of the restrictions goes through a notary and the Registro de la Propiedad.

• Treating as valid a restriction not recorded in the Registro de la Propiedad.
• Believing a generic mention suffices: the Code asks that it appear specifically in a public instrument.
• Subdividing the lot thinking that escapes the restriction.
• Assuming the restriction lapsed by itself for being old, without asking the court for the declaration of extinction.
• Negotiating the removal with some neighbours when the agreement must be unanimous among the interested parties.
• Breaching it in fact instead of bringing the declaratory action.

These are the government pages this guide is based on.

• Poder Judicial de Puerto Rico

  Poder Judicial

  bvirtualogp.pr.gov