Deed Restrictions and Covenants May Regulate Land Use, Aesthetics

Last Updated: August 7, 2020

Here we educate you about deed restrictions, which are rules or conditions that a property owner or developer wants to impose on how future owners may use the land or buildings. Noble ones promote a sound and beautiful community, but there are silly ones too.

In fact, the owner feels so strongly about a matter that a deed conveying title to the real estate actually spells out what those limitations or requirements are, usually binding not only the next owner but also every future owner to a set of rules. Increasingly, states are placing a time limit on these restrictions, but that practice is by no means universal yet, and even so, 20 or 30 years can seem like a long time if you hate those covenants.

The most common application now in the U.S. is in newer subdivisions and condominium associations where often the deed refers to a long document called a master deed.

In some places the specifics of the deed are called the declarations, the covenants, or the "CC&Rs," which itemize what is allowed and what is not permitted in the development.

Older subdivisions and individual properties also can be subject to a baffling array of deed restrictions ranging from common sense protections of a neighbor's rights to eccentric clauses prohibiting or requiring certain behaviors that future owners find most challenging.

Of all the topics on this website, restrictive covenants have attracted both the most frequent and the most difficult questions from our readers.

You quickly can arrive at the point where you need legal advice if you are reading covenants or clauses in the deed, and not understanding them exactly.

Deed restrictions 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 seek information on how to break a deed restriction; this process is often called extinguishment. The process varies from state to state, and in many states it will be as difficult as finding every single heir to the person who first imposed the restriction, or every single property owner in a subdivision, and establishing in writing that they concur with your request to change the deed restrictions.

To answer a question we have received more than once, the person who imposes the deed restrictions can almost always remove it, although it is important that the grantor consult an attorney in order to see that this task is completed correctly.

The only generalization worth making is that the difficulty is 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 could be facing some real work.

But it varies. Massachusetts sets a time limit on the number of years that deed restrictions can apply, and Sun Belt states are beginning to provide for automatic expiration of restrictions in new developments unless the subdivision or condo association takes positive action to renew the restrictions.  Notably Florida now has a Marketable Record Title Act that provides that some restrictions expire in 30 years if affirmative action is not taken to continue them but you need to read the whole law if you want to understand in detail how this law might apply to you or your development.

Today's More Common Version, the CC and R's

Today 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.

For example, I've heard some people say that this phrase stands for covenants, codes, and restrictions in their development.

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 lots or units have been sold, at which time the homeowner association needs to incorporate and elect its own officers.

Of course, this too could vary; your developer might want more or less control over what happens.

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 difficult to get the required number of people to attend the meetings if everything is going well.

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. This can be a good thing, if the developer has a unique or positive design vision, or it can just be a control freak thing.

Aside from state law requirements, the CC&Rs may be permanent or as close to permanent as permitted by the state, or they may have a predetermined expiration date, on the theory that the homeowner association can do as they please after that.

Many CC&Rs also have a provision for asking the homeowners association board to obtain a variance, a process that parallels with municipal zoning.

How Are Deed Restrictions Different From Zoning?

Restrictive covenants or deed restrictions or CC&Rs are not at all the same things as land use zoning.  First, one of the major differences is that the government does not write or enforce these covenants, but it does impose and enforce zoning.  Second, zoning is subject to public hearing requirements and to notice requirements when a zoning district is applied to particular property. Usually the first homeowners who purchase from the developer have no opportunity at all for input into the content of the CCRs.

To enforce deed restrictions or the CC&Rs, typically a homeowner would need to deal with the homeowners association. If there is no association, or if the association is unable or unwilling to address the situation, the only recourse is court.

Deed restrictions also "run with the land," meaning that a change in land ownership does not change the restriction. Indeed their whole purpose is to bind the actions of future owners. In reality they are often more difficult to change than municipal zoning.

Common questions have to do with which takes precedence, zoning or restrictions placed on land by previous owners. Our short answer is that both must be followed.  However, if there is a direct conflict between the two, what happens might vary from state to state.  The question might even have to be litigated.  (We have an entire section of deed restriction questions and answers on this site, by the way.  You can ask your question there.)

We are not big fans of regulating land use through deed restrictions, partly because social customs and economic conditions change over time.  

Just to give one example, look at the enormous growth of home businesses over the past couple of decades because technology makes almost any occupation have some potential for working at home. This complicates old deed restrictions against conducting business in residential areas.

While it never seems easy to change zoning regulations, there is a public process for doing so, and you never need to track down the original people who imposed a regulation or their heirs.

What Else Does the Master Deed Regulate?

I'm glad you asked. In fact, be sure to ask before you buy property covered by CC&Rs or master deed. You should receive a copy before you sign a sales contract, but sometimes enthusiastic new salespeople forget or have been instructed not to be overly concerned about handing them out. It seems like every few weeks we receive a question from someone who claims not to have been given a copy of the restrictions when they purchased their home.

We also are receiving a question about what recourse people have if they did not receive a copy of the covenants or even were told there were none.  If you have huge monetary damages because you already spent lots of money before finding out that you are violating the covenants, you can try suing the professionals involved in your transaction, which might include real estate agents, attorneys, or title companies, but consider that all of these probably are financially able to mount a good defense.  In most cases, this isn't worthwhile.

Just to make you aware, here are some topics that your CC&Rs might regulate:

• Building materials
• Exterior colors
• Whether you can park an RV, boat, or pick-up in your driveway
• What you or your guests have to wear when you go to the community pool
• What kinds of flags and banners you may display
• Whether you may install playground equipment or a basketball goal
• Mailbox type
• Types of holiday decorations allowed
• Required use of battery-powered lawn mowers rather than gasoline
• What kinds of blinds, shades, and shutters are acceptable
• Pets, including number, type, weight, breed, and so forth 
• Procedure for sub-lease, if any is allowed
• Fence type, height, and materials
• Ages of visitors for what length of time (in a senior complex)
• Noise ("quiet hours")
• Use of drones, remote-control airplanes and cars
• Whether you may cut down or plant a tree on your property
  
• Restrictions on other types of plantings, such as whether you might plant low-water plants (xeriscape) or whether certain invasive species are prohibited
• Whether and how you can extend your patio or balcony
• What can happen in your backyard
• Where your satellite dish can be placed and whether you can have one at all
• Whether and where you can barbecue

I hope I scared you into actually reading those 50 pages of the master deed when you find a condo you love.

Enforcement Methods Available to the Homeowners Association

The 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 HOA may have broad powers over individual property owners, or it may have no power except the power of persuasion.  This will be spelled out in the master deed.

The board also may choose to go to court to enforce the CC&Rs. Sometimes they have the right 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 feel you are a victim of overly aggressive enforcement, your only viable option will be to talk with your neighbors, try to enlist them in your cause, and then attend the HOA board meeting in a group to demand reconsideration.

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.

If You Still Have Questions

In an article of this length, we can only scratch the surface of all the situations you might encounter when dealing with restrictive covenants. If we didn't answer your question, we encourage you again to please scan through the many questions we have answered on our deed restriction question page to see if we addressed a similar situation.

However, all of our advice there is simply that--advice from a friendly group of city planners.  In most situations, you or your HOA will need an attorney to effectively deal with changing, extinguishing, adding, or subtracting deed restrictions.  We continue to answer a few questions there because we think it's helpful for people to have some background information before they visit an attorney.

1. Community Development
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2. Zoning and Other Regulations
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3. Deed Restrictions

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