A $1.2 million Lyon Village home has gone up for sale with a planned condition — it can’t be redeveloped as a multi-family residence.
“Prior to settlement, the seller will put in a covenant to restrict the property to a single family residence,” reads the Redfin posting for the four bedroom, two bathroom home built in 1954.
It’s not the first time Arlington residents have turned to housing covenants to prevent multi-family development under the Expanded Housing Option — or Missing Middle — zoning changes. Last September, neighbors in the Tara-Leeway Heights neighborhood used such an agreement to convince a developer to build a single-family home instead of a duplex.
The Lyon Village covenant would be different, though, as the other agreement was written in a 1938 deed that also included a provision meant to bar anyone from selling the house to a person of color.
Despite the passage of Missing Middle, which allows for the development of multi-family homes in previously single-family only neighborhoods, adding a single-family covenant to an individual property is — at least potentially — still fair game, Venable land-use attorney Kedrick Whitmore said.
“It’s inherently within the rights of a property owner to put restrictions on use of a property in order to achieve what they want to do, which [in this case] is to fight Missing Middle policy,” Whitmore told ARLnow.
A lawsuit could possibly argue that these provisions are contrary to public policy, based on Missing Middle zoning ordinances. But the “inherently subjective” nature of that kind of claim makes it “a very hard argument to make,” the attorney said.
However, a single-family covenant would need to be crafted to avoid unintended consequences, like making it unlawful to operate an office out of the home or list a business address there.
“You’d have to be very careful in the way that you draft it, that it does that intent and that intent only,” he said.
These covenants could also make some lenders reluctant to provide loans, Whitmore added, as they place restrictions on the pool of potential buyers.
The County Attorney’s Office told ARLnow in September that it is aware of private covenants on Arlington properties.
“However,” the office said, “the County has no legal role in the regulation or enforcement of private covenants, so we cannot comment further on how private individuals might utilize covenants on their property.”
While adding single-family covenants to Arlington properties might be legally defensible, it’s not widespread. Real estate agent Eli Tucker tells ARLnow that he is not aware of any other local listings that have referenced this kind of agreement since Missing Middle went into effect last July.
“I have not heard of this happening in any other case and, frankly, would be surprised to hear it being more than a one/two off scenario,” he said.
Even so, the proposed agreement has earned the disapproval of at least one pro-Missing Middle group: YIMBYs of NoVa.
“Restrictive covenants have long been used to exclude new residents from Arlington,” the organization said in a statement. “We hope the seller and buyer of this home, just a two blocks from the Court House Metro Station, will keep an open mind about the future possibilities for more housing in our community, and that this proposed covenant will not be part of the transaction.”
Photo via Maria Ziegler/Unsplash
