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Restrictive covenant
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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. In jurisdictions that use the Torrens system of land registration, restrictive covenants are generally registered against title.
Scope of covenants
Restrictive covenants may arise from many sources, and may be registered against titles or included in leases.
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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. In jurisdictions that use the Torrens system of land registration, restrictive covenants are generally registered against title.
Scope of covenants
Restrictive covenants may arise from many sources, and may be registered against titles or included in leases. Some covenants exist for safety purposes, such as a covenant forbidding the construction of tall buildings in the vicinity of an airport or one restricting the height of fences on corner lots (so as not to interfere with drivers' sight lines). Covenants may restrict everything from the height and size of buildings to the materials used in construction to superficial matters such as paint colour and holiday decorations.
Commercial covenants
Restrictive covenants are commonly registered against commercial properties. General covenants such as those restricting the heights of structures or forbidding certain "dirty" businesses (such as feedlots or chemical production facilities) are common in industrial areas located near residential communities. Developers may seek to restrict the type of business allowed to operate in a certain area so that a purchaser of land in a research park, for example, could not turn the building into a bingo parlour or a tool and die factory. A commercial lease may include a restrictive covenant forbidding the sale of certain items, such as pornography or liquor. A powerful mall tenant (such as a major supermarket chain) may require its landlord to include in its leases to other tenants a restrictive covenant forbidding the sale of certain items (such as fresh meat and produce). The latter situation is more common outside the United States, and is especially seen in Canada.
Residential covenants
Residential covenants are relatively common in the United States. Some residential covenants may be considered generally benign, such as those preventing owners or tenants from removing healthy trees, fundamentally altering historically important structures, or directly harming property values. Others, however, are more detailed. Some restrictive covenants may govern what colour a home's exterior is painted, what and how many exterior decorations are allowed, where cars are allowed to be parked, or even who lives in the house (outside of the owner's nuclear family).
Many communities also attempt to forbid amateur radio or outdoor television antennas. Various states in the United States have enacted or are enacting laws forbidding such restrictive covenants and rendering void existing covenants, as amateur radio operators are often seen as essential emergency services.
Residential restrictive covenants are much more common in the United States than in other English-speaking nations.
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 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 in the United States 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. In Canada, governmental authorities may apply both restrictive covenants and zoning regulations to properties. For instance, the City of Calgary's requirement that buildings in the general vicinity of Calgary International Airport be under a certain height is registered against virtually every title in the northeast quadrant of the city as a restrictive covenant, not as a zoning by-law.
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
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