Friday, December 22, 2006
Be aware of restrictive covenants
By Ann Robinson and Annie Vernon
We may be in over our heads this week, but we want to introduce you to the concept of restrictive covenants. Restrictive covenants are deed restrictions that apply to a group of homes or lots generally within a development or subdivision. They are usually put in place by the original developer and therefore differ from one neighborhood to another.
Many neighborhoods in and around Salt Lake City began as individual subdivisions so it is not uncommon to have restrictive covenants associated with small pockets of homes. Restrictive covenants tend to refer to issues related to the property and what is built on it. They may have the intent to give a development a standard appearance and may try to control some of the activities that take place within the specified boundaries.
Some of the issues covered by restrictive covenants are similar to city zoning ordinances. These may dictate setbacks (how close you can build to a street, for instance), minimum building sizes and maximum building heights, easements and what activities may take place (such as no business operations or rentals). Other items may extend beyond typical municipal ordinances, such as the number of pets one can own, restrictions on storing vehicles, minimum square footage of homes built in a subdivision, and when a yard has to be added to a newly built home. Some covenants even cover issues related to design and appearance, such as requiring certain types of building materials or restricting the exterior colors homeowners can use.
Restrictive covenants "run with the land," meaning the covenants remain intact even when homeowners change. Cities and counties do not enforce covenants. It is up to the individual homeowners living within the specified area to enforce them. This can be done through a homeowners association or on an individual basis if there is no HOA. Enforcement can be as simple as neighbors or an HOA reminding people of the covenants, or it can be as complicated as filing a civil lawsuit against the offending neighbor. This level of enforcement obviously has financial and social consequences for the parties involved.
When considering purchasing a property, you need to find out if there are restrictive covenants. They should be disclosed by a real estate agent or homeowners and at the very least they should appear in the report done by the title company. You should carefully weigh how these covenants will impact your living in the house and neighborhood. Some covenants have effective dates while others may be perpetual. Through the cooperation of homeowners, it may also be possible to modify or terminate the covenants. In older neighborhoods, there may be restrictive covenants that have not been enforced for years and have faded from everyone's memory. Restrictive covenants are on file in the County Recorder's Office, but they are not readily accessible and may be difficult to find. But even if they are long forgotten, any homeowner in an area can do the research and resurrect them at will if they are still within the effective date.
So, as you can see, this really is a subject for attorneys specializing in real estate law. It would be useful, if you don't already know, to try to find out if your neighborhood has existing restrictive covenants and what they are before you embark on a remodeling project. But then again, maybe ignorance is bliss! As always, we welcome your home architect design questions at email@example.com.