You purchase a home and have expectant plans to renovate it a little bit. You decide you would like to put in a great outdoor kitchen space for entertaining. You begin dreaming about all of your friends coming over to enjoy patio parties in your posh outdoor kitchen area with plenty of seating and those fun string lights that everybody loves. You have plans for not just eating but an outdoor fireplace with a chimney that you can also hang up a big flatscreen TV to enjoy games with friends.
The construction has begun and you're getting very excited for the end date and warmer weather around the corner. Then you find a notice on your front door that is from the neighborhood association letting you know that your renovation plans are not within the covenant restrictions. What is a covenant restriction? Especially when you don’t remember agreeing to any. Is the neighborhood association allowed to tell you what you can do with your own backyard?
The short answer to that last question is actually yes. If there is a restrictive covenant on the property, they are able to request that you stop and adhere. Restrictive covenants are an agreement between a property owner and the other authoritative parties in the neighborhood that limit the use of the property. Most often restrictive covenants are written into the deed of the property, or at least referenced in the deed, and kept on file with your local government or the homeowners association.
In simple legal terms, a restrictive covenant “runs the land.” This means that these covenants apply to the property itself and not a specific owner who purchases the property or originally made the agreement. This means that these limitations are legally binding for any future property owners.
Restrictive covenants began in America as a means of zoning to help prevent livestock and machinery from encroaching in on residential real estate areas. In the 1920s these covenants were mostly used for the purpose of keeping the standards of a neighborhood neat and tidy and uniform. This is mostly what these covenants are used for today and many of them come through homeowners’ associations.
Are restrictive covenants enforceable?
The only way a covenant is no longer enforceable is if it expires. They can also be overturned if there is a history of the covenant being violated several times by other properties in the community or if an individual or group is no longer benefiting from the covenant. You want to make sure that a covenant is in fact void before you violate it, however. Failing to do so could mean paying a fine or facing legal action.
Can you do anything to overturn a restrictive covenant?
If you have a homeowners association governing your deed restrictions you can take a proactive approach in finding a solution to the restrictive covenant. HOAs exist to ensure property values for every resident in the neighborhood boundaries remain at as high a level as possible. First, you want to read your deed and the restrictions carefully. Most often this is included in a secondary document and not the deed itself. This is usually known as the CC and Rs, or list of covenants, conditions, and restrictions. In some cases, you may be able to bring your case to the board and ask them to reconsider the restrictive covenant. In some more difficult situations where the HOA will not budge on their decision you could ask other homeowners in the neighborhood how they feel about the issue and maybe get enough people to ask for it to be changed. This would require a vote by all homeowners in the community.
Beyond these measures, you could opt to take legal action to have a judge void the restriction from the deed. This route however is very difficult and requires you to prove beyond a doubt that the HOA does not have the authority to enforce the particular restriction.
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