We applied for variance in order to replace existing fence in the back but it turned out that there is small municipal easement.(east-west) (Our neighbor and we already have fence there, since area was first developed.) We agreed for removal of fence if there is emergency. However, during variance meeting, we were suddenly advised to add deed restriction in our deed because it turned out that, in 1980s when the area was developed, there was a plan to install sidewalk on the municipal easement area (east-west) between my home and my neighbor and it might still happen. Unlike my neighbors, we are the only ones who cannot install fence and need to have deed restriction because I want to replace fence.What is disadvantage of having deed restriction like this and what can I do about it?Thanks.
Real Estate Attorney
Replacing a fence usually does not require a variance. Assuming the residence is in a part of town zoned for residences, I would suspect that local ordinances allow for fences without the need for a variance. Replacing a fence may require application for a construction permit. I suspect there are facts not in your question which are missing; and which would, if provided, shed light on to your situation.
As a general matter, deed restrictions, including easements, must be recorded to have any restrictive effect on the deed. The easement for a future sidewalk must be recorded somewhere: either individually in the deed books in the country records, or in a master plan (which would also need to have been filed in the county records.) Also, keep in mind that the government almost always reserves the area closest to the street as a public right of way, on which the government can build a sidewalk.
I recommend you carefully review your deed language, and your title insurance. Your title insurance policy should mention all deed restrictions. Another possibility is to take the metes and bounds description as found in your deed and physically mark the boundaries on your property. You might be surprised to see the legal description (metes and bounds) does not extend your ownership of the land as far as you think it does.
At the very least, contact an attorney. If you had a hearing, of any kind, I hope you had an attorney represent you. If you did, bring this matter to that attorney's attention. If you did not, then immediately consult with an attorney.
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Land Use / Zoning Attorney
It seems like your question clearly lays out the disadvantages of having a restriction like this. As for what you can do, you will need to consult with a local attorney. In some limited situations municipal easements expire over-time, but most are perpetual and do not expire. An attorney will need to review the easement, and apply New Jersey law to the facts to determine what your rights are. You may have to consider putting the fence on your own property that is unencumbered by the easement.
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