Property deals: What are restrictive covenants?

What is a legal covenant?

An agreement, contract, or written promise between two individuals that frequently constitutes a pledge to do or refrain from doing something.

In a legal covenant, an individual making the promise or agreement is known as the covenantor, and the individual to whom such promise is made is called the covenantee.

Covenants are a type of contractual arrangement that is enforceable by a court. There are both positive covenants and restrictive covenants – a covenant acting as a legally binding promise to do something is a positive covenant and one not do something is a restrictive covenant.

Restrictive covenants in property deals:

Restrictive covenants are mentioned in the title deed. It is a legal obligation imposed in a deed by the seller upon the buyer of real estate to do or not to do something.

Such restrictions are often associated with “run with the land”, i.e. the covenant is annexed to the estate and cannot be separated from the land or the land transferred without it. Such a covenant exists if the original owner as well as each successive owner of the property is either subject to its burden or entitled to its benefit and are enforceable on subsequent buyers of the property.

Common restrictive covenants:

If you are living in an apartment complex, you should be aware of few common topics you will see in Restrictive Covenants in residential sale agreements. They are:

1. Not to keep or store any offensive, combustible, obnoxious, hazardous or dangerous articles in the apartment, the common areas or the parking lot as they may be injurious or obnoxious to occupiers of the building.

2. Not to place any article or object in the common areas.

3. Rules about pets and other animals. For example – you are barred from breeding for profit, from keeping livestock and to make sure no harm is ensured by your pets, etc.

4. Regulations dealing with in-home businesses and home rentals. For instance, there may be clauses restraining you from running an office or clinic etc. from a residential complex.

5. Some restrictions limit you from painting your home’s exterior walls.

6. Clauses related to fees for maintenance or amenities.

How to modify restrictive covenants?

Where a Homeowner’s Association exists, restrictive covenants may usually be modified or repealed by the association through procedures set forth in its by-laws.

However, if such an association does not exist, in most jurisdictions the property owner may petition a court of law to have the restrictive covenants modified or repealed, and the judge presiding over the case will provide verdict to either leave the covenants in place as is, amend the covenants, or strike them from the deed.