Deed Restrictions, Covenants and HOA Rules

Private Controls: Deed Restrictions, Covenants, and Conditions

Private land-use controls are established by private individuals, developers, or private entities rather than by government bodies. A deed restriction is a private limitation placed on the use of real property by a grantor when transferring title. Grantors and subdividers use these restrictions to maintain the character, desirability, and value of residential neighborhoods. Deed restrictions commonly regulate property uses, such as limiting a parcel to single-family residential use, as well as architectural styles, minimum square footage, building height, and setbacks.

Restrictive covenants are private promises restricting land use that may appear in deeds, subdivision declarations, or separate agreements. Most restrictive covenants run with the land, meaning they bind not only the original parties who agreed to them, but also both current and future property owners. Whether a restrictive covenant runs with the land depends on the original parties' intent, its connection to the property, adequate notice to successors, and applicable state-law requirements. For example, if a prior owner agreed to a covenant stating that a parcel must always maintain an open front yard without tall fences, that restriction continues to obligate subsequent buyers who purchase the home years later.

It is essential to distinguish between a restrictive covenant and a deed condition. A deed condition may create a defeasible fee estate if the language in the deed makes the estate subject to termination for a specified breach. Depending on the type of defeasible fee, breach of a deed condition may cause the estate to terminate automatically or give the grantor or a successor a right to reclaim title, subject to state law. In sharp contrast, the breach of a restrictive covenant typically results in an injunction or monetary damages rather than the loss of title. An injunction is a formal court order commanding a property owner to cease a violation of a deed restriction or dismantle nonconforming work, such as ordering an owner to tear down a structure built in violation of a height covenant.