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Land Use and Property 101: Restrictive Covenants
August 01, 2019

By Armand Resto-Spotts

What is a restrictive covenant? 

In the context of property and land use, a restrictive covenant is a promise of the respective landowner to not do something on the property.  Stated differently, a restrictive covenant obligates the property owner to refrain from some specific activity or use on their property.  There are multiple types of restrictive covenants, but this article will focus on those that run with the land.

In many ways, restrictive covenants act like “negative” easements—prohibiting the burdened property owner from doing something, rather than granting the benefiting party to a right of use.  Just as your neighbor could have an easement for access to their property across your own, both of you may have agreed to a restrictive covenant that limits your ability to, for example, build any structure over 10 feet in height.  Or, maybe there is a covenant recorded against your property prohibiting you from constructing a pool, or maybe even conducting any commercial uses on your property.  The scope and extent of possible restrictive covenants is vast and variable.

How is a restrictive covenant created?

A big distinction between an easement—even a negative easement—and a restrictive covenant is the mechanism of agreement.  Often, an easement is expressly granted via written agreement or reserved expressly in a deed or other conveyance document.  In the past, a restrictive covenant may be created in the same way.  However, today, a restrictive covenant is in most cases created by declaration, a recorded document against multiple properties that evidences the original intent and limitations for the properties within that development.  The most obvious example many people deal with are Conditions, Covenants, and Restrictions (CC&Rs) for subdivisions and other neighborhood associations.  In that example, by owning property within a designated plat or condo community, the owner expressly agrees to the recorded CC&Rs for that property, which may include any of the above (and beyond) limitations on use of that property. 

Do I have to agree to restrictive covenants?

If the covenant is recorded against the property, then ownership of that property is tied to that covenant (or covenant document).  There are mechanisms to terminate restrictive covenants, but it is not a unilateral process that a new homeowner, or disgruntled neighbor, can do (absent arguments to the covenant’s legality).

How do restrictive covenants and zoning laws operate together?

Generally speaking, if a restrictive covenant is less restrictive than an applicable zoning regulation, the zoning law prevails.  In that case, one could possibly bring a suit, notwithstanding the cause of action, against a neighbor that is violating zoning law, but still be compliant with the applicable covenant.  If the restrictive covenant is more restrictive, it prevails over the zoning regulation.  A valid restrictive covenant that is consistent with applicable law will not be superseded or terminated by the passage of a later zoning ordinance inconsistent with that covenant.

Who enforces covenants?

Neighbors, adjacent landowners, municipalities–many individuals and entities can seek to enforce covenants.  In the governing CC&Rs (or other covenant document), there may be a proscribed method in alerting the presiding community association (i.e., an HOA) about covenants that are being violated, and how best to address those violations.  In lieu of that, a civil lawsuit may be filed to enforce the restriction.

Generally, courts will interpret restrictive covenants in favor of the original purposes.  In other words, what was the purpose of the covenant in the first place?  Of course, unlawful covenants will not be favored.  However, this interpretative method, recently affirmed in Coyne v. Grigg Family, emphasizes the importance of carefully reviewing CC&Rs and other restrictions on title before purchasing. 

How do I terminate a covenant?

If there is a homeowners’ association managing the properties, the association’s bylaws and the CC&Rs for the respective properties should provide a process for amending the CC&Rs.  Typically, this is done by collective vote and procedural rules vary from neighborhood to neighborhood.  Certain covenants under declaration may also expire after a certain period of time, if so provided in the document itself. 

Alternatively, one could record a termination of covenant, if both parties to the original covenant—or their successors—agree to the termination.  Covenants can also be terminated by courts, upon a showing of illegality, abandonment, or even changed circumstances (i.e., inequitable to continue enforcing said covenant). 

Armand Resto-Spotts is an attorney at Jordan Ramis PC who focuses his practice on land use, real estate, and environmental law.  If you have questions regarding covenants, easements, or other land use controls on property, please contact Armand at armand.resto-spotts@jordanramis.com or (360) 567-3900.

Thank you for your interest in this blog. The information contained in this blog is for the general interest of our readers and should not be regarded as legal advice.
 



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