Purchasing a home or other piece of real estate sometimes comes with a restrictive covenant. This is a clause in a deed that legally prohibits you from taking certain actions on the property or using the property in a specific way. A restrictive covenant might also be included in a homeowner’s association contract.
Restrictive covenants can be positive or negative. A negative restrictive covenant prevents you from doing something, such as painting the home a certain color. A positive restrictive covenant requires you to take certain actions, such as mowing our lawn regularly.
Restrictive covenants are common in real estate transactions and can apply to almost any action. They can apply to a piece of real estate itself or the surrounding land. For example, a restrictive covenant might specify that the land surrounding your home cannot be used for agricultural purposes.
The purpose of restrictive covenants in real estate is generally to keep the property in good condition and preserve its value in relation to the surrounding land. They are legally enforceable, meaning that if you do not comply, you could be subject to fines or other legal penalties.
Running with the land
Restrictive covenants typically “run with the land” which means they stay in place no matter who owns the property. Legally, the covenant attaches to the property itself, not the owner.
You should thoroughly review a real estate contract or HOA agreement before completing any real estate transaction. Although there are many reasons this review should be done, one reason is to check for restrictive covenants.
Moving into a new home and discovering that you cannot take certain actions due to a restrictive covenant can be an unpleasant surprise. However, this does sometimes happen. If it does, is there anything you can do?
The answer depends on the situation. Here are some steps you can take to determine if there is a way out of a restrictive covenant.
Did the covenant expire or is the language vague?
First, review the covenant language to see if there is an expiration date. Sometimes covenants are given an expiration date, after which a property owner can violate the covenant without fear of legal repercussions.
Next, review the language itself. See if the terms are specific and detailed enough to tell you exactly what you can or cannot do. Courts sometimes rule that restrictive covenants are void because the language is too broad or too void.
An example of vague wording is a restrictive covenant that says a property must be “properly maintained.” Without any further explanation of what “properly maintained” means, you cannot be expected to know how to comply with the covenant and it could be ruled legally unenforceable.
Are other property owners following the covenant?
If a restrictive covenant has no expiration date and the wording is specific and detailed, it could still be ruled void if you can show that other property owners are ignoring the covenant.
A common scenario involves a neighborhood with a restriction in every deed stating that no homes can have pools, but half the homes in the neighborhood have pools installed. This evidence showing a pattern of not following the covenant can be used to argue that it should be declared void.
Finally, you can choose to ignore the restrictive covenant. However, this opens you up to the risk of a lawsuit, especially in an area where the covenants are actively enforced. A better option is reviewing the covenant to see if there are any legal grounds to have it voided.