Deeds are complex legal documents. And they come with restrictions, sometimes to the surprise of the property buyers. How much do you know about deed restrictions and the unexpected ways they can control the way you're allowed to use your property?
In the broadest terms, a restrictive covenant is an agreement between two or more landowners about how they will use their property. The agreement is written into the property deeds, and is legally binding on all future owners.
There really is no difference between the two. Deed restriction is simply another name for a restrictive covenant, although restrictive covenant is used more often when referring to covenants involving large groups of landowners.
While the deed must at least make reference to the existence of restrictions for them to be binding, the actual restrictions are often listed on a separate document either on file with local government agencies, or in the possession of the homeowners association or developer that enforces them.
The terms of a restrictive covenant apply to the current owner. So a buyer must obey the terms of any deed restrictions after purchasing the property, but the seller is free of those obligations once the property is sold.
The phrase "runs with the land" refers to the fact that the terms of a restrictive covenant apply to the land itself, and are contained in the deed. Any future owner of the land also has to abide by the restrictions.
These days, restrictive covenants are usually created and enforced by homeowners associations, for the benefit of all the property owners in a particular development, subdivision or neighborhood. Builders and development companies sometimes create covenants, also.
Today, covenants are used to enforce uniformity and maintenance among all the houses in a community, so that one house doesn't fall into disrepair and drive down the value of other houses, or scare off buyers with eccentric design.
In the 1948 landmark case of Shelley v. Kraemer, the court ruled in favor of an African-American homeowner, reversing a previous decision by the same court that made the opposite ruling.
Several recent controversies, including one in a North Carolina neighborhood, have erupted after racially restrictive covenants were found intact in affluent neighborhoods. The homeowners associations under fire have attributed the lingering racism to the difficulty in changing deed restrictions.
One of the grounds for a judge to rule that a covenant cannot be enforced is if the terms of the covenant aren't detailed enough to be followed. If they simply refer to standards of quality or style without explaining what those standards are, they are probably not enforceable.
While some covenants have no expiration date, many are set to expire after a set term (often 30 years). But dissident HOA members shouldn't celebrate yet. Homeowners associations can vote to renew all covenants after the expiration is up.
The first step in fighting a restrictive covenant is to ask the homeowners association to grant an exception. Whether or not an exception is granted varies by the neighborhood and how strict your neighbors are, but usually more modest changes are easier to have approved.
As long as all parties agree to resolve deed restrictions, they can be dissolved, in theory. However, in a homeowners association, this requires a majority vote of all members, which can be extremely difficult to obtain.
Livestock bans are commonly included in deed restrictions, but any type of animal can be banned, including pets like dogs and cats. Usually, homeowners associations have some limits on the size and number of pets that a property owner can keep in their home.
Deeds restricting a property owner from using their residence for business purposes are not uncommon. But as long as you are not running a large scale operation that violates other laws (like zoning), it is possible to convince a judge that you have a right to work out of your home.
While a homeowner's association, neighbor or developer cannot directly force you to make changes to your home, or enter your property to try making the changes themselves, a successful suit in court can result in the judge ordering you to make the changes at your own expense.
Restrictive covenants frequently place limits on the size, orientation, and design of any pools or adjacent structures like sheds and garages. Even if those amenities are not directly restricted, covenants often limit what percentage of a property's total land can be devoted to buildings of any kind.
It is well within the legal scope of a restrictive covenant to require homeowners to paint their houses only in approved colors, or to refrain from certain colors. In some neighborhoods, the uniform look of the houses is a highly prized commodity that helps maintain property values.
Deed restrictions can be used to limit the size of a house, usually in terms of bedrooms, to protect the sewers in a particular neighborhood from being overloaded.
Part of the appeal of a vacation home is that perfect view of the beach or the mountains, so a common deed restriction in resort areas prohibits any one homeowner from obstructing any of their neighbors' views.