What Is A Restrictive Covenant?

Fact Scenario

Lawson would like to purchase a home in the Southland Hills neighborhood. He consulted with his realtor and learned that Southland Hills is subject to certain "restrictive covenants," including a restrictive covenant that all homes in the neighborhood must conform to a common paint/color scheme.

Restrictive covenants are deed provisions that set forth a unique set of rules applicable to given properties. Often the original builder or developer implements the restrictive covenants when a neighborhood is first developed. Generally speaking, the purpose of restrictive covenants is to ensure a standardized appearance for a specific area. Another purpose of restrictive covenants is to control specified activities within the area. Notably, restrictive covenants must be considered as an additional requirement beyond the applicable zoning laws, regulations, and ordinances.

Types of Restrictive Covenants

Restrictive covenants vary in their nature and scope. Some common examples of restrictive covenants are:

• set-backs (relating to the distance between a house and roadways and/or lot lines);
  
• provisions regarding fees to maintain the common areas;
  
• easements (areas set aside for utilities or construction of additional parking areas and/or roadways);
  
• provisions regulating businesses operated within homes;
  
• provisions regulating the rental of homes;
  
• general restrictions with regard to sanitation, pets, or storage of property on lots; and
  
• provisions delineating the procedure for changing or modifying any restrictive covenants.

Is There Any Way to Terminate or Change Restrictive Covenants?

It may be possible to terminate or change a restrictive covenant. A careful consideration of the language that is used in the covenant itself, as well as any procedure that is set forth for termination or change of the covenant, must be made. If no procedure is set forth for termination or change, consider the following:

• whether the restrictive covenant is of a limited duration and, if so, when it expires;
  
• whether the restrictive covenant is so vague or confusing that it is unenforceable;
  
• whether the restrictive covenant was included in the deeds to some lots in the neighborhood but abandoned as to the rest;
  
• whether the other property owners and/or the homeowners' association will agree, in writing, to allow you to disregard the restrictive covenant;
  
• whether the restrictive covenant has been violated by other property owners without consequence; and
  
• whether the covenant is unenforceable because it discriminates against property owners on an illegal basis.

A home buyer should carefully consider the nature and extent of any restrictive covenants prior to purchasing a home. The advice of an attorney may be extremely beneficial. The home buyer can determine whether any applicable restrictive covenants conform to the home buyer's plans for the home. If it becomes necessary for a property owner to challenge a restrictive covenant, there are remedies available; however, it may not be possible for the property owner to succeed in terminating or changing a restrictive covenant.

Copyright 2010 LexisNexis, a division of Reed Elsevier Inc.