A Sidebar on Covenants

RECORDED COVENANTS. Covenants are promises by and between current and future owners to do and refrain from doing certain things with the property.

Covenants might include promises that each owner will pay into a common fund to pay for the cost of maintaining the property, that owners will form an entity (your owners association), that the owners will elect a board to allow a few people to get things done on behalf of all of the owners, that the association will maintain finances and financial records so you get the most value out of your home, and that the owners–to a reasonable point–will let the board manage those affairs without a vote of all the owners and without the unreasonable interference of a few owners.

RESTRICTIVE COVENANTS. Covenants often include restrictions that limit what the association and owners can do so that the association can’t oppress you and so that one member can’t exploit your association’s precious resources (the park, the community room, the rooftop terrace, quiet enjoyment) to the detriment of all the other behaving owners.

Covenants must be related to real property ownership or they’re not really covenants. A real property covenant that prohibits a real property owner from owning a boat is an unenforceable real property covenant because it really doesn’t have anything to do with the property. However, a covenant could prohibit an owner from parking a boat on the owner’s front lawn.

ZONING LAWS. As a general rule, restrictive covenants are enforceable even if your local zoning laws are less restrictive. If your local government allows you to build homes on lots smaller than a quarter of an acre but your restrictive covenants require minimum five acre lots, you likely won’t be building multiple homes on the five acre lots.

WHY CARE ABOUT COVENANTS? Many developers build good buildings but don’t prepare and record covenants suitable for the owners that end up living there. Sometimes the needs of the community change over time. Some really nice homes are subject to some really crappy covenants. Over time laws and court cases have established some standards for what covenants can and can’t do. The situation could be a lot better.

We believe in fair, enforceable, and clearly understood real property covenants because they keep down the cost of operating a community association. No one wants a protracted dispute over how high the grass can be, or the color shading of window shades, or whether Mrs. McGillicuddy can shoot her gun into the air at midnight on Festivus without consequences.

If you are thinking about buying a new home then first read and understand the covenants. If owners are concerned about the fairness, enforceability, or clarity of covenants, then encourage your board to contact your association’s attorney for advice. If your association doesn’t have an attorney talk to us—we’ll put you in contact with an attorney that can help.

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