A restrictive covenant is a clause in a deed or lease to real property that limits what the owner of the land or lease can do with the property.
Land developers typically use restrictive covenants when they subdivide property for residential developments. A land developer, after platting the subdivision into lots, blocks, and streets, will impose certain limitations on the use of the lots in the development. These may include a provision restricting construction to single family dwellings with no detached outbuildings, as well as specifying that the dwellings are to be built at least a specified distance from the street and from the side and back lot lines, commonly called a "set back" requirement. There may be a variety of other restrictive covenants that seek to control the way the development looks and is maintained. These covenants are filed with the approved plat.
A person who purchases a lot in a development with restrictive covenants must honor the limitations. When the purchaser resells the lot to a buyer, the new owner will take the property subject to the restrictive covenants, because the covenants are said to "run with the land."
If a person violates or attempts to violate one or more of the covenants, a person who is benefited by the covenants, usually an adjacent property owner, may sue to enforce the restrictions. Courts generally strictly construe restrictive covenants to allow a landowner to use her land for any purpose that is not specifically prohibited by the restrictive covenants or by the local government. Therefore, if a developer wants to restrict a subdivision to single family residences, the developer must state "single family residential" rather than "residential" in the covenant.
Buyers are often not particularly concerned about restrictions and often focus on other issues such as property condition. However, as with any contract, you should carefully read any applicable restrictions before binding yourself to a real estate transaction.
For more information about restrictive covenants, including their creation, applicability, and enforcement, contact RICE & ROSE and let one of our experienced attorneys assist you.
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