Can a Propertys Restrictive Covenant be Removed?

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Restrictive covenants are created to maintain standards in neighborhoods and prevent unsightly additions to properties. View more photos of home construction.
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You’re excited to have a new pool installed in your backyard. You’ve already paid the contractor and they’re scheduled to begin work soon. However, you receive a notice from your neighborhood association stating that your property is subject to a restrictive covenant that prohibits pools. How is that possible? You don’t remember agreeing to any such covenant. Is it legal?

Unfortunately, it is. A restrictive covenant is an agreement between a property owner and other parties that restricts the use of a property [source: American Bar Association]. The covenant is usually included in the deed or referenced in the deed and kept on file with a county or municipal government or a private entity, such as a homeowner’s association. Legally, restrictive covenants “run with the land,” meaning they are binding on anyone who subsequently buys the property, regardless of the specific owner who agreed to the covenant [source: American Bar Association].

Restrictive covenants date back to 18th- and 19th-century England. Private landowners used covenants during the Industrial Revolution to reach agreements on land use. For example, a property’s deed might contain a covenant that prevents a factory from operating to protect surrounding farmers [source: McKenzie]. In the United States, deed restrictions were initially used to prevent livestock or machinery from encroaching on residential areas before zoning laws became common [source: Dehring].

Today, subdivisions, builders, developers, or homeowner’s associations (HOAs) most commonly create restrictive covenants. Covenants are used to enforce certain standards to prevent property values from declining. These standards can relate to landscaping, architecture, outbuildings, fences, paint color, building materials, driveways, and even seemingly unrelated items like the number of cars a homeowner can park in front of their house or the type of pets they can own. Restrictive covenants can be challenging to avoid, as residents of particularly strict neighborhoods will attest. However, there are ways to circumvent or remove the covenants from deeds entirely. Read on to learn more.

Is the Restrictive Covenant Still Enforceable?

The simplest way to avoid the requirements of a restrictive covenant is to ignore it. Covenants may become unenforceable if they expire, if there is a history of the covenant being violated, or if no individual or group benefits from them. However, it is crucial to ensure that the covenant is void before violating it; otherwise, you may face legal action.

The use of discriminatory covenants to restrict property ownership based on race was common in the early 1900s, prohibiting minority groups such as African-Americans, Asian-Americans, and Irish immigrants from living in predominantly white neighborhoods. These covenants were deemed unconstitutional by the U.S. Supreme Court in 1948, but they remain in many deeds across the country due to the difficulty in revising them. In cases where expiration dates are listed in the deed or with the government, property owners can safely violate the covenant if it has expired or will soon expire. Vague covenants that do not clearly outline their terms or requirements may also be unenforceable. Even if specific requirements are laid out in the covenant, it may not hold up in court if other property owners are ignoring or inconsistently following the restrictions. Homeowners can choose to ignore unenforceable covenants or seek a judge’s ruling to have them removed from the deed. However, it may be more challenging to fight against restrictive covenants in neighborhoods with active homeowner’s associations that enforce the restrictions. Some property owners may include eccentric or unusual restrictions in their deeds, such as banning individuals born north of the Mason-Dixon Line or prohibiting the making of salted pork on the property.

To make changes to the restrictions in a Homeowner’s Association (HOA) neighborhood, the first step is to carefully read the deed and the list of covenants, conditions, and restrictions (CC&Rs) that usually contain procedures for altering the restrictions. Applying to the HOA for permission is usually required, and while some HOAs are more lenient, others are very strict. To deviate slightly from a restriction, a variance can be applied for, while a waiver is asking for complete permission to ignore a restriction. In most HOAs, a committee decides whether to grant or deny such requests. If the HOA refuses to grant a waiver or variance, a majority vote of the members of the association is required to change or remove the restriction from every deed in the neighborhood. Seeking legal action against the HOA is another option, but it is usually very difficult to prove that the HOA does not have the right to enforce the restriction. Therefore, it is best to carefully understand any restrictive covenants before purchasing a property in an HOA neighborhood. The first HOA was established by builder Jesse Clyde Nichols in a Missouri suburb in 1914.

FAQ on Restrictive Covenants

A restrictive covenant agreement is a contract between a property owner or previous owner and other parties, which restricts the use of a property. The enforceability of covenants depends on whether they have expired or been violated, and if there is a group or individual benefiting from them. If they are enforceable, ignoring them may result in legal action. Covenants can either have an expiration date or last indefinitely. Examples of restrictive covenants include limitations on property alterations, new building erection or business use. Removing a covenant from a property requires speaking to the homeowner’s association or subdivision that put it in place and seek a new agreement. If that fails, a lawyer can help with legal action.

More Information

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Sources

  • American Bar Association “Family Legal Guide: Chapter 5.” (Feb. 3, 2011)http://www.americanbar.org/groups/public_education/resources/law_issues_for_consumers/books_family_legal_guide_home.html
  • Barta, Patrick. “Eliminating Restrictions from a Property Deed.” The Wall Street Journal. April 25, 2003. (Feb. 2, 2011)http://online.wsj.com/article/SB121379918796784349.html
  • Bray, Ilona, Alayna Schroeder and Marcia Stewart. “Nolo’s Essential Guide to Buying Your First Home.” Nolo. February 2009.
  • Cameron, John G., Jr. “Restrictive Covenants, Reciprocal Negative Easements, and Building and Use Restrictions.” The Practical Real Estate Lawyer. September 2010. (Feb. 2, 2011)http://files.ali-aba.org/thumbs/datastorage/lacidoirep/articles/PREL1009-Cameron_thumb.pdf
  • Dehring, Carolyn A. and Melissa S. Lind. “Residential Land-Use Controls and Land Values: Zoning and Covenant Interactions.” Land Economics. Vol.83, no. 4. Page 445. November 2007.
  • Fambrough, Judon and Cindy Dickson. “Living with Deed Restrictions.” Tierra Grande. 1983. (Feb. 3, 2011)http://recenter.tamu.edu/pdf/410.pdf
  • Frazer, Hubbard, Brandt, Trask & Yacavone. “Restrictive Covenants.” (Feb. 4, 2011)http://www.fhbty.com/newsletters/Real-Estate/?launch_pg=NewsletterDetailLayout&launch_sel=1000327&title=Restrictive+Covenants
  • McKenzie, Evan. “Privatopia.” Yale University Press. 1994.
  • National Association of REALTORS. “What about the CC&Rs?” (Feb. 3, 2011)http://www.realtor.com/basics/condos/ccr.asp?source=hp
  • Rose, Jule. “Myers Park HOA Pays $17,500 To Settle Dispute With NAACP.” WFAE 90.7 FM. Jan. 17, 2011. (Feb. 15, 2011)http://www.wfae.org/wfae/stat_search.cfm?id=6817&action=display
  • Rossi, Hamerslough, Reischl & Chuck. “CC&R Basics.” (Feb. 2, 2011)http://realestate.findlaw.com/covenants-conditions-restrictions/ccr-basics.html
  • Shayne, Beth. “NAACP Takes on Myers Park Over ‘Whites Only’ Deed.” WCNC.com. Dec. 14, 2009. (Feb. 3, 2011)http://www.wcnc.com/news/local/NAACP-takes-on-Myers-Park-over-Whites-Only-deed-79275782.html
  • Snell, David. “Restrictive Covenants: A Stop on Your Plot?” Homebuilding and Renovating. December 2009. (Feb. 3, 2011)http://www.homebuilding.co.uk/feature/restrictive-covenants
  • Sullivan, Bryan. “Yankee, Stay Home! Southern Hospitality on Hold.” ABA Journal.

In April 1998, the Seattle Civil Rights and Labor History Project at the University of Washington published an article on “Racial Restrictive Covenants.” The article can still be accessed on their website as of February 3, 2011. The article sheds light on the history of racially restrictive covenants in real estate and how they were used to segregate communities.

FAQ

1. Can a restrictive covenant be removed from a property?

Yes, a restrictive covenant can be removed from a property. However, it can be a complicated process, as it often involves negotiating with the parties who benefit from the covenant. The most common way to remove a restrictive covenant is through a court order. This can be done by applying to the court and showing that the covenant is no longer necessary or is preventing the property from being used to its full potential. Another option is to negotiate with the parties who benefit from the covenant. In some cases, they may be willing to release the covenant, especially if they no longer have an interest in the property or if the covenant is preventing the property from being sold or developed.

2. What is a restrictive covenant?

A restrictive covenant is a legal agreement that restricts the use of a property. It is often used to protect the value of neighboring properties or to maintain a certain standard of living in a particular area. For example, a restrictive covenant might prevent the owner of a property from building anything other than a single-family home or from using the property for commercial purposes. Restrictive covenants are typically attached to the property and remain in place even if the property is sold to a new owner.

3. Who benefits from a restrictive covenant?

A restrictive covenant benefits the parties who are named in the covenant. This could include the owners of neighboring properties, a homeowners’ association, or a particular group of individuals who have an interest in the property. The purpose of the covenant is to protect the interests of these parties by restricting the use of the property in some way.

4. What is the purpose of a restrictive covenant?

The purpose of a restrictive covenant is to protect the value of neighboring properties or to maintain a certain standard of living in a particular area. For example, a restrictive covenant might prevent the owner of a property from building anything other than a single-family home or from using the property for commercial purposes. The covenant is intended to ensure that the property is used in a way that does not negatively impact the surrounding area.

5. Can a restrictive covenant be modified?

Yes, a restrictive covenant can be modified, but it requires the agreement of all parties who benefit from the covenant. This can be a complicated process, as it often involves negotiating with multiple parties. If all parties agree to the modification, it can be done through a legal agreement. However, if one or more parties object to the modification, it may be necessary to go to court to have the covenant modified.

6. What happens if a property owner violates a restrictive covenant?

If a property owner violates a restrictive covenant, they may be subject to legal action by the parties who benefit from the covenant. This could include fines, injunctions, or even the forced sale of the property. It is important for property owners to be aware of any restrictive covenants that apply to their property and to ensure that they comply with them.

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