Table of Contents

What is a Covenant in Property?

A covenant in property, in its simplest form, is a legally binding agreement or promise written into a deed or other legal document that concerns the use and enjoyment of land. Think of it as a set of rules, etched in stone (or rather, recorded in county records), that dictate what you can and cannot do with your property. These promises “run with the land,” meaning they bind not just the original buyer and seller, but also all subsequent owners, for better or worse. They are crucial for maintaining property value and ensuring community harmony.

Understanding the Nuances of Property Covenants

Covenants are the unsung heroes (or sometimes villains, depending on your perspective) of real estate. They are more than just suggestions; they are legally enforceable obligations. To truly grasp their impact, we need to delve into their different types, characteristics, and the implications they hold for property owners.

Types of Covenants: Affimative vs. Restrictive

Covenants primarily fall into two broad categories:

Affirmative Covenants: These covenants require the property owner to do something. Think of it as a compulsory action. A classic example is the obligation to pay homeowner’s association (HOA) fees. You affirm your responsibility by paying these dues, which then contribute to the maintenance of common areas within the community. Another example might be a requirement to maintain a shared driveway.
Restrictive Covenants (also known as Negative Covenants): These covenants prohibit the property owner from doing something. They restrict certain actions. These are far more common than affirmative covenants. Examples include restrictions on building height, the types of animals you can keep, the color you can paint your house, or even whether you can operate a home-based business.

The Critical Distinction: Covenants Running with the Land vs. Personal Covenants

This distinction is absolutely vital:

Covenants Running with the Land: These are the covenants that truly matter in the long run. They are attached to the property itself, and they bind all subsequent owners, regardless of whether they were aware of the covenant when they purchased the property. To “run with the land,” a covenant typically needs to meet certain legal requirements, including being in writing, intended to bind future owners, and “touching and concerning” the land (meaning it affects the use and enjoyment of the property).
Personal Covenants: These covenants bind only the original parties to the agreement. They are not attached to the land and do not bind subsequent owners. An example might be a promise made between neighbors to maintain a fence; if one neighbor sells their property, the new owner is not bound by that original agreement.

Creation and Enforcement of Covenants

Covenants are typically created when a developer subdivides land into lots and records a declaration of covenants, conditions, and restrictions (CC&Rs). This document outlines all the rules governing the development. These CC&Rs are then incorporated by reference into individual deeds.

Enforcement of covenants usually falls to a homeowner’s association (HOA) or, in the absence of an HOA, individual property owners who benefit from the covenant. Violations can lead to warnings, fines, or even lawsuits seeking injunctive relief (a court order to stop the violation).

The Importance of Due Diligence

Before you buy any property, you must conduct thorough due diligence to uncover any existing covenants. This includes:

Reviewing the Deed: Your deed should reference any recorded CC&Rs.
Searching County Records: The county recorder’s office will have copies of all recorded documents affecting the property.
Title Search: A title company will conduct a title search to identify any covenants affecting the property.
Consulting with an Attorney: A real estate attorney can review the documents and advise you on the implications of any covenants.

Failing to uncover existing covenants can lead to unpleasant surprises down the road. Imagine buying a property only to discover you can’t build that dream deck because of a setback restriction, or that you have to paint your house a specific color.

Frequently Asked Questions (FAQs) about Property Covenants

Here are 12 frequently asked questions about property covenants, designed to clarify common confusions and provide practical guidance:

1. Can covenants be removed or changed?

Yes, covenants can be amended or terminated, but the process can be complex. Typically, it requires a vote by a certain percentage of property owners within the community. The specific requirements for amendment will be outlined in the CC&Rs themselves. In some cases, a court order may be necessary to remove an obsolete or unenforceable covenant.

2. What happens if a covenant is violated?

The consequences of violating a covenant depend on the specific circumstances and the terms of the CC&Rs. Usually, the HOA or a neighboring property owner will issue a warning. If the violation continues, fines may be imposed. In more serious cases, a lawsuit may be filed seeking an injunction to stop the violation.

3. Are all covenants enforceable?

No, not all covenants are enforceable. Courts may refuse to enforce covenants that are illegal, unconstitutional, ambiguous, or against public policy. For example, covenants that discriminate based on race or religion are unenforceable.

4. What is a “waiver” of a covenant?

A waiver occurs when the HOA or a property owner knowingly allows a violation of a covenant to continue without taking action. If this happens repeatedly, a court may rule that the covenant has been waived and is no longer enforceable.

5. How do I find out if my property is subject to covenants?

The easiest way is to check your deed. It should reference any recorded CC&Rs. You can also search the county records or hire a title company to conduct a title search.

6. What is the difference between a covenant and a condition?

While often used interchangeably, a condition in a deed can result in the forfeiture of ownership if violated. A covenant, on the other hand, typically leads to damages or an injunction. Conditions are far less common than covenants.

7. Can covenants be created verbally?

Generally, no. To be enforceable and to “run with the land,” covenants must be in writing. This requirement stems from the Statute of Frauds, which requires certain contracts involving land to be in writing.

8. What are “equitable servitudes”?

Equitable servitudes are similar to covenants but are enforced in courts of equity rather than law. They often arise when there is no formal written agreement but there is a clear intention to create a restriction on land use and subsequent owners have notice of the restriction.

9. How long do covenants last?

The duration of a covenant can vary. Some covenants have a specific expiration date, while others are intended to last indefinitely. CC&Rs often include provisions for automatic renewal unless a certain percentage of property owners vote to terminate them.

10. What role does an HOA play in enforcing covenants?

The Homeowners Association (HOA) is typically responsible for enforcing the covenants within a community. The HOA board has the authority to issue warnings, impose fines, and file lawsuits to ensure compliance with the CC&Rs.

11. Can I challenge a covenant if I disagree with it?

Yes, you can challenge a covenant in court if you believe it is unenforceable or that it is being applied unfairly. However, you will need to have a valid legal basis for your challenge, such as arguing that the covenant is discriminatory, ambiguous, or that it has been waived.

12. Are covenants always a bad thing?

Not at all! While covenants can sometimes feel restrictive, they also play a crucial role in maintaining property values, preserving neighborhood aesthetics, and ensuring a certain level of community harmony. Well-drafted and consistently enforced covenants can enhance the quality of life for everyone in the community.

Understanding covenants is crucial for any property owner or prospective buyer. They are the invisible threads that weave together the fabric of a community, and knowing how they work can save you from costly mistakes and ensure a harmonious living environment. Remember to always do your due diligence and seek legal advice when in doubt.