Neighborhood Covenants and You
Please note that none of this is intended as legal or real estate advice. Should you have questions or concerns about covenants on your property and their enforcement, you should consult an attorney. This article is meant to be instructive only; it’s always better to be informed. Many home buyers are unaware that such things exist.
The whole reason for covenants is to protect the investment first of the real estate developer and later of the individual homeowners. You wouldn’t want your wacky neighbor to paint their house purple with green and orange polka dots the week you put yours on the market, after all – at least, from a seller’s viewpoint. The question of property ownership versus being a “good neighbor” is a lot more complicated.
Covenants are not to be confused with local zoning regulations, which are developed and enforced by your city or county. Those are laws and must meet very different standards for adoption and enforcement. They cannot force the segregation of a community, as covenants have been used to do.
The concept of covenants in the US came from English common law, which has been the basis for many rules of American property ownership and sales, but have been around since the days of Ancient Rome. Covenants can cover anything from restricting what you can build on your land (no sheds or only certain kinds of fences, for example) to when you can take your garbage out or where and when you can park your motor home or boat. One local covenant regulates how long you may park in your driveway or have your garage door open.
Developers file a declaration of their covenants at the time land is subdivided for development. Generally, the restrictions they choose are applicable to all of the parcels in the subdivision or development. That means that anyone who buys land there is subject to the covenants that were filed, whether they know about them or not.
As a rule, a copy of the covenants must be filed with the City or County offices where the plat or development plans were filed and should be noted on each deed. The developer retains the rights to enforce the covenants while the subdivision is being built. The company wants the homes to look a certain way until he or she can sell off the land and make the profits.
After that, a homeowner’s association or other body specified in the covenants normally takes over enforcement. These groups often disappear over time due to lack of interest, need, and knowledge. That doesn’t mean that the covenants cannot be enforced, though. In most states, individual homeowners have the right to enforce the covenants.
You are expected to know what is in the covenants, even though you may never have seen them. This is a good example of the maxim that “ignorance of the law is no excuse”. In some states or communities the seller is required to provide a copy or disclose the existence of these covenants to the buyer before closing the sale, but it is not a common obligation. The person selling the house to you may not even know about them.
If you are looking at purchasing a home, especially a condominium or in a planned community, ask the seller or your realtor about covenants, deed restrictions, and any governing board. If possible, talk to neighbors about their experiences with the board. You can find plenty of horror stories about people who have run up against inflexible and strict associations who veto projects for purely aesthetic reasons. Often, the rules they are enforcing allow subjective decisions of that nature.
If you intend to do construction – an in some cases even landscaping – on your property, you will want to be sure that you know about any covenants that exist. If there is an architectural review board or a homeowners’ association, their approval may be required for any exterior project. Should you fail to abide by their rules, they can require you to change it back. Just because they have not enforced a rule on other homes in the area does not mean that they cannot or will not require you to abide by it.
There is no reason to fear covenants, so long as you are aware of what you are dealing with. Doing your homework will go a long way towards smoothing your relations with your neighbors, or at least towards making sure that you have a leg to stand on when you build that gazebo for your hot tub or when you are trying to convince your neighbor not to paint their garage fluorescent pink.
