Covenants, and the Newer Term, CC&Rs, Regulate Private Land Use, Aesthetics, and More
Covenants are simply private agreements that bind owners buying real estate. They include deed restrictions, where the deed to the property actually spells out some type of restriction on the use or sale of the land. Much more frequently, the deed document itself simply refers to a more detailed list of land covenants that are found elsewhere. This page explains covenants and also the CC&Rs or master deeds that govern condominium associations. A deed restriction could say the land can never be sold for development, a live tree can never be cut, a second driveway can never be constructed, the property can never be used as a bar, or any of a huge variety of other prohibitions or requirements.
Our visitors often are seeking information on how to break a deed restriction. It varies from state to state, and in reality, the only way to deal with that question economically on our particular site is to refer you to an attorney. The only generalization worth offering is that the difficulty is directly proportional to how many individuals have a say in the deed restriction. If the person who restricted the deed has a large number of heirs, you're in for some real work. Today's More Common Version, the CC&RsToday almost every condominium or townhouse association, a very large percentage of planned developments, and some older, more established subdivisions have what are known as CC&Rs. The phrase refers to Covenants Conditions & Restrictions. You might encounter other names for this document. The CC&Rs include the rules of operation for the homeowners association. A very common provision is that the developer controls a development until 50 percent of the units have been sold, at which time the homeowner association needs to incorporate and elect its own officers. Importantly, the CC&Rs also contain the procedures by which the provisions may be changed. In practice, it's often difficult to change the CC&Rs, because it's tough to get attendance at the meetings if everything is running smoothly. Commonly the CC&Rs may require some type of super-majority, that is, more than 50 percent, of homeowners to vote in favor of a proposed change. The purpose, of course, is for the developer to control the character of the development. The CC&Rs may be permanent, or may have a pre-ordained expiration date, on the theory that the homeowner association can do as they please after that. Many CC&Rs also have a provision for going before the homeowners association board to obtain a variance, in parallel with municipal zoning. How Is This Different from Zoning?Covenants or deed restrictions or CC&Rs all differ from municipal zoning in that a public body cannot enforce these private agreements. To enforce the provisions of the CC&Rs, typically a homeowner would need to deal with the homeowners association. If the association is unable or unwilling to address the situation, the recourse is court. Covenants also "run with the land," meaning that a change in land ownership does not change the covenant. In reality they are often more difficult to change than municipal zoning. So What Else Do CC&Rs Regulate?I'm so glad you asked. In fact, be sure you ask before you buy property covered by CC&Rs. (Sometimes this document is called the master deed, by the way.) You should receive it before you sign a sales contract, but if you slip up, make sure you have a copy and read it thoroughly before you pass the point of no return. Here are some subjects I've seen covered in CC&Rs: I hope I scared you into actually reading those 50 pages of master deed when you find the condo you love. Enforcement Methods Available to the Homeowners AssociationThe homeowners association board can be very powerful in these cases. The CC&Rs (which some places also try to minimize by calling them by-laws)may allow for fines, which can become liens against your property if unpaid. A lien against your property means that when the property is sold, the lien is paid from the proceeds. The board also may choose to go to court to enforce the CC&Rs. Sometimes they may be able to enter onto your property, particularly the exterior, to seize the offending flag or basketball goal. Many of these homeowner association boards become a little carried away with their power, and may issue exaggerated orders. If you're a member of the homeowner association board, by all means, look at the spirit of the covenants and not the letter of the law. The covenants are meant to protect a particular look and style; don't make them into more than that. Return from Covenants to Zoning
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