Real Estate

Reviewing Restrictive Covenants on Real Estate Before Buying

By Brian Farkas, Attorney
Even if state law doesn't restrict what you do with your home, restrictive covenants set by your homeowners' association or other local entity may do so.

Potential homeowners assume that, once they buy a home, they can essentially do as they wish with it. If they want to plant a tree in the lawn, they will; if they want to paint the house pink, they can; if they want to install solar panels on their roof, no problem.

Unfortunately, such freedom cannot necessarily be assumed for every home purchase.

Restrictive covenants are agreements that limit how homeowners can use their property. These agreements may be created by language in the deed itself or by a separate document relating to the deed. They are said to "run with the land," meaning that they apply to anyone who owns the property.

If you are planning on buying a home, condominium, townhouse, or other property, you must take note of whether any restrictive covenants will affect your ability to use your new residence.

Purpose of Restrictive Covenants

Who would try to limit your ability to freely use your property? Municipalities, developers, or homeowners’ associations (HOAs) will often create and enforce restrictive covenants. (In the latter two cases, these are typically referred to as covenants, conditions, and restrictions, or CC&Rs.) Private citizens may also regulate land use when they enter into contracts, which impose restrictive covenants on land.

The goals of these entities vary, but generally, they're trying to either increase property values (say, by preventing residents from painting their homes ugly colors) or to maintain order within the neighborhood (perhaps by mandating certain days or methods of putting out trash).

Restrictive covenants may also be designed to maintain the character of certain developments or neighborhoods (including by preventing residents from making certain alterations to their homes’ size or facades or from removing historic trees lining their property).

Doing Your Due Diligence Before You Buy

Keep in mind that restrictions can come from a variety of sources. If you are buying into a condominium or other development, the developer should give you a detailed list of these restrictions and requirements before you close the sale.

If your potential purchase is a "regular" home, not connected with a development, the easiest way to find out about any restrictive covenants is by looking at the title commitment that you'll get before buying title insurance. The title company should note any applicable restrictions within. If for some reason you won't be getting title insurance, you can visit (or ask your lawyer to visit) the local county recorder of deeds. Restrictive covenants will be written onto the face of the property deed, which is a public record.

You’ll want to find out about and consider any restrictive covenants well in advance of the closing, since you may realize the limitations are more than what you are willing to live with.

Examples of Restrictive Covenants

The following restrictions are among the most common types that a home buyer might encounter, particularly when buying a property in a community governed by a homeowners' association:

  • preservation of a sight line for a neighboring property
  • height, placement, or type of construction allowed for certain parts of the property
  • necessity of obtaining permission to repaint a home a different color, or being required to repaint on a regular schedule
  • when and what holiday decorations you may display
  • types and number of pets allowed
  • prohibition on operating an in-home business
  • guidelines for tree-cutting or landscaping
  • limits on types of fencing that can be used and the maximum height allowed
  • whether and where you may park RVs, boats, and non-running vehicles on the property
  • types of materials that may be used for window treatments
  • prohibition on installing solar panels, enclosed patios, or swimming pools, and
  • maintaining a home’s minimum size, height, architectural style, or color scheme.

You’ll notice that some restrictive covenants are actual restrictions, while others are affirmative obligations. For example, you might be prohibited from planting trees taller than seven feet; you might also be required to paint your home’s façade white once per year. You should carefully study both types of restrictive covenants before you purchase.

What Happens If You Violate a Restrictive Covenant?

Penalties are important for you to understand as a homeowner. If you violate a restrictive covenant, like the ones listed above, what happens?

If you live in a community governed by a homeowners’ association, it will (if it's doing its job) take steps to enforce the covenant. Local authorities (e.g., the police or district attorneys) will not enforce a covenant, because it’s a purely contractual agreement, and not a criminal statute. (In the context of historic preservation, however, there might be legislation restricting your ability to alter your home if it’s considered a historic structure). Most likely, the HOA board will investigate any complaints and then, if appropriate, issue a fine.

In certain circumstances, individual neighbors may also take legal action to enforce a restrictive covenant. The neighbor would ask the court for an "injunction" ordering you to comply with the covenant. The neighbor might also succeed in having the court award money damages for the breach and attorney fees and court costs.

Difference Between Restrictive Covenants and Zoning Regulations

Restrictive covenants are different from zoning regulations. Local governments (cities and counties) regulate land use primarily through zoning ordinances. A zoning ordinance may direct things like what types of structures can be placed on property within a particular zoning classification (commercial, residential, industrial) and so forth, and what uses can be made of that property.

Some zoning ordinances are similar to restrictive covenants, such as those limiting the height of a building. Nevertheless, restrictive covenants typically exert even greater control over a homeowner’s lifestyle.

Questions for Your Attorney

  • Before I purchase a new home or property, how can I see all of the restrictive covenants that might limit my use and enjoyment of the property?
  • Before I purchase a new home or property, can I negotiate one or more of the restrictive covenants?
  • How can a homeowner dispute the legality of a particular restrictive covenant?
  • Can restrictive covenants dictate what a homeowner may plant in the backyard if the yard is not visible to any other homeowner in the community?
  • What are the penalties for my breaking a restrictive covenant?
  • What's my recourse if the HOA board is enforcing restrictive covenants against me, but not against other property owners?

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