If you are planning on buying a home, find out if there are any restrictive covenants and exactly what they are before making a decision. Restrictive covenants are agreements that dictate how you can and can't use and maintain the property.
These agreements may be created by language in the deed itself or by a separate document relating to the deed.
Purpose of Restrictive Covenants
Restrictive covenants are created and enforced by homeowners, developers, condominium and subdivision associations and municipalities. Reasons and motives vary, but the general purpose is to protect property values. Some covenants are very basic and are meant to protect a neighborhood from homeowners destroying trees or historic elements. Others try to dictate everything a homeowner can and can't do to the exterior of their property.
Even if the property isn't in a development, you'll want to know about any restrictions up front because you may not be able to live with them. Remember you're contractually giving up certain property rights by agreeing to act in accordance with any provisions in restrictive covenants if you purchase property governed by them.
What can be in a Restrictive Covenant
Some of the activities that can be found in these contracts are:
- Maintaining property in a reasonable state of repair
- Preserving a sight-line for a neighboring property
- Building restrictions on certain parts of the property
- Requiring permission to re-paint a home a different color
- Time allowing exterior holiday decorations to display
- Restricting the types and number of pets
- Having an in-home business
- Tree-cutting and landscaping rules, including grass height
- Fencing that can be used and the maximum height allowed
- Parking RVs, boats and non-running vehicles on the property
- Using certain types of window treatments
- Time allowing for repairs after initial notification
- Prohibiting installation of solar panels, enclosed patios and swimming pools
- Maintaining a home's minimum size, height, architectural style and color scheme
Before You Buy
Ask if there are any restrictive covenants on a property you're interested in before making an offer. If neither the seller nor your real estate agent has a copy, get a copy from the county courthouse. However, you can make your offer contingent on your review and approval of the restrictive covenants.
If you violate a restrictive covenant, the homeowners' association or individual property owners must enforce it. Local authorities will not enforce a covenant because it's a contractual agreement, not a criminal matter. Most likely, a committee will review any complaints and then notify you about their decision. If you don't resolve the issue, you may receive a notice of possible legal action.
Different from Zoning
Restrictive covenants are different from zoning regulations. Local governments (cities and counties) regulate land use primarily through zoning ordinances. A zoning ordinance may include what types of structures can be placed on property within a particular zoning classification (commercial, residential, industrial and so forth). Private citizens may also regulate land use when they enter into contracts which impose restrictive covenants on land. Some zoning ordinances are similar to restrictive covenants, such as limits on the height of a building, but restrictive covenants usually exert even greater control over a homeowner's lifestyle.
Confusing Clauses in Restrictive Covenants
Restrictive covenants may be confusing, so be sure to have them reviewed by a contracts or real estate attorney before signing them.
Questions for Your Attorney
- How can a homeowner dispute the legality of a particular restrictive covenant?
- Can restrictive covenants dictate what a homeowner may plant in their backyard if the yard is not visible to any other homeowner in the community?
- Must a homeowner agree to abide by the restrictive covenants of a development in order to purchase a home in that community?