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Friday January 25, 2019

Restrictive Covenants

Authored by: Lauren M. Randall Posted in: Real Estate

When purchasing a new home, it is important to note that some lots have restrictive covenants that apply to them.  Restrictive covenants are rules that govern the use of the lot and other lots in the subdivision.  It is not unusual to see covenants that prevent the building of a fence or detached garage, the installation of signage or satellite dishes and restrictions on non-residential uses.  When purchasing a property that is subject to restrictive covenants it is important to review the covenants carefully to make sure that they will not interfere with the intended use of the property.

In many subdivisions, there are properties that are in contravention of the restrictive covenants.  But this does not mean that the restrictive covenants do not really matter.  They are a binding agreement that runs with the property, regardless of ownership, and if not followed can result in complaints and legal action against the owner of the property.  This is true, even if the current owner was not the owner at the time the covenant was violated.

There may be the possibility to have a covenant waived by the original developer if it interferes with a purchaser’s intended use of the property.  This requires finding out who the original developer of the subdivision was and making a request to them.  There is no guarantee that this request will be granted, or that the original developer can be located.  However, there are instances where a developer will sign an authorization releasing an owner from a specific covenant.

What this also means is that any other owner can request a waiver of the covenants.  So, it is possible that not all the properties within a given subdivision will be subject to the same covenants.  The covenants may say that no animals other than regular domestic pets are permitted on the property, however, if the owner had this waived then their chicken coops or horses are there to stay.

If you have any questions about property covenants, or any other real estate matter please contact one of our Real Estate and Estate lawyers.

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