Restrictive covenant
Posted on:3/27/2006
| A restrictive covenant is a legal obligation imposed in a deed by the seller upon the buyer of real estate to do or not to do something. |
Such restrictions frequently "run with the land" and are enforceable on subsequent buyers of the property. Examples might be to maintain a property in a reasonable state of repair, to preserve a sight-line for a neighbouring property, not to run a business from a residence, or not to build on certain parts of the property.
Covenants were originally enforced in equity as servitudes for the benefit of the owners of land affected thereby. Previously the enforceability of covenants and servitudes depended upon compliance with strict requirements having to do with privity of estate between the owners of the affected parcels of land, but these requirements have diminished over time in favor of a general policy of enforcement of any covenants which are reasonable in terms and "touch or concern" the land affected.
Some are very simple and are meant only to protect a neighborhood from homeowners destroying trees or historic things or otherwise directly harming property values. Some go to an extreme and try to dictate absolutely everything a homeowner can do to the exterior, including the number of non-familial tenants one may have, or needing permission to re-paint the home unless it will be exactly the same color. Other extremes include dictating exactly when holiday decorations are allowed up, prohibiting the raising of a hood on any car (even to check it for safety), even prohibiting any car from being parked outside a garage at all. Many communities also forbid amateur radio or outdoor television antennas; however, see discussion below.
Some have accused homeowners associations of selective enforcement of these rules, making a case only when it is something (or someone) another person dislikes. Breaking a rule, even unintentionally, can bring fines or even a lien on the home.
A restrictive covenant differs from a zoning regulation in that its creation and enforcement is a matter of contract between the landowners whose properties are affected by it, rather than an exercise of the governmental police power.
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