When a street was subdivided and sold as lots, the front setback was set at 20 feet (in difficult to read cursive handwriting!). The initial houses observed the front setback, but some replacement houses from the 1960’s on do not. Current city regs set the front setback at 12 feet.
I can think of three possible ways to resolve this 12 v 20 foot conflict:
1. The city rules preempt some ancient deed restriction, so it has no legal effect. The city has a compelling interest in not having overly restrictive deed restrictions from another era stop infill development up to the limits it sets with its regulations.
2. The restriction can be enforced, but only by the heir of the owner from 1901, who has a “right of return” that allows them to sue and “hold up” the current owner to pay money to release the restriction. In practice, the chance of the heir of the owner of a lot sold in 1901 being aware of this right is less than 1%, so the restriction is basically meaningless.
3. The restriction can be enforced by any prior owner, in which case, the options would be expensively paying off recent owners who might have bothered to read and understand the complicated cursive deed restrictions on their own houses.
In both 2 and 3, there are statutes of limitations, so you’d only have to “live in fear” for maybe four years. Alternatively, you can argue that the right of return arose a long time ago because of some minor encroachment into the “12 to 20 foot” zone, was not enforced, so the statute has already run.
Situations involving very old deed restrictions have gone to litigation. The ones that end up in court are usually some huge rural lot that the current owner wants to suburbanize, and the heir of the former owner being very aware of the issue, and the current owner suing the prior owner for declaratory relief on the issue. The cases like this I’ve seen the current owner usually wins. I’ve never seen something like this for just a regular residential lot.
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