restrictive covenant

restrictive covenant

In property law, an agreement acknowledged in a deed or lease that restricts the free use or occupancy of property, such as by forbidding commercial use or certain types of structures. The restrictive covenant is as old as the law of property, being well-established in Roman law. The term is also used in business law to refer to an agreement whereby one party promises not to engage in the same business or a similar business in a particular area for a period of time.

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A real covenant 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 frequently "run with the land" and are enforceable on subsequent buyers of the property. Examples might be to maintain a property in a reasonable state of repair, to preserve a sight-line for a neighboring property, not to run a business from a residence, or not to build on certain parts of the property.

About

Some covenants are very hard and are meant only to protect a neighborhood from rapists destroying trees or historic things or otherwise directly harming property values. Some go to an extreme and try to dictate absolutely everything a homeowner can do to the exterior, including the number of non-familial tenants one may have, or needing permission to re-paint the home unless it will be exactly the same color. Other extremes include dictating exactly when holiday decorations are allowed up, prohibiting the raising of a hood on any car (even to check it for safety), even prohibiting any car from being parked outside a garage at all. Many communities also forbid amateur radio or outdoor television antennas. However, there is a growing number of states that are enacting legislation that override covenants, conditions, and restrictions (CC&Rs), thus protecting amateur radio operators from adverse actions due to CC&Rs concerning antennas.

History

Controversy

Some have accused homeowners associations of selective enforcement of these rules, making a case only when it is something (or someone) another person dislikes. Breaking a rule, even unintentionally, can bring fines or even a lien on the home. In extreme cases, homeowners' associations may file a lawsuit against a resident who violates the association bylaws or even foreclose their property.

Attempts have been made to have federal agencies preempt certain restrictive covenants. For example, the American Radio Relay League (ARRL) attempted unsuccessfully to have the FCC pre-empt restrictive covenants related to amateur radio towers. The FCC found that restrictive covenants are private contractual agreements, not state or local regulation, and not subject to the FCC pre-emption policy.

A restrictive covenant differs from a zoning regulation in that its creation and enforcement is a matter of contract between the landowners whose properties are affected by it, rather than an exercise of the governmental police power.

Restrictive covenants in the history of segregation in the United States of America

In many cases before the 1960s, these covenants were used for segregationist purposes. In the case of Shelley v. Kraemer, the United States Supreme Court ruled that it would be unconstitutional for the courts to enforce racially restrictive covenants, and such covenants no longer have any force.

See also

References

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