03-Jan-2013
By Allison Preston
Restrictive covenants are commonly found in communities with homeowners’ associations; however, property may be subject to restrictive covenants even if not governed by an HOA. The deed a homeowner receives when purchasing property will note whether or not the property is subject to any restrictive covenants with language such as, “SUBJECT TO: Current taxes and other assessments, reservations in patents and all easements, rights of way, encumbrances, covenants, conditions, restrictions, obligations, and liabilities as may appear of record.” With this type of language contained in a deed, a homeowner should do his or her due diligence to determine what restrictive covenants apply to the property and whether the homeowner and property are in compliance with the restrictive covenants.
Restrictive covenants run with property and are essentially a contract between the property owner and other property owners subject to the same restrictive covenants. Restrictive covenants govern what a homeowner can and cannot do with his or her property and are generally perpetual in duration, meaning that every individual who purchases a property subject to restrictive covenants must abide by the restrictive covenants. Common restrictive covenants for properties in planned communities include requiring each lot in a community to be developed with only a single-family residence, limiting the colors that a homeowner may paint the exterior of his or her home, requiring homeowners to maintain front yard landscaping, etc. In most planned communities, restrictive covenants serve to maintain a consistent appearance and quality of maintenance throughout the community that helps to maintain property values.
When purchasing a home, whether a single family residence, a condominium or a town home, be sure to ask your realtor whether or not the community is governed by a homeowners’ association and whether or not the property is subject to restrictive covenants. Before purchasing a property subject to restrictive covenants, be sure to review the covenants to determine whether you and your goals for your property comply with the requirements of the covenants. While some HOAs may let minor violations of the covenants slide, other HOAs will enforce even the slightest restriction, which can leave non-compliant homeowners with fines and possible legal action.
If you are involved in an HOA case or other simple or complex issue and want experienced legal representation, please call 480-733-6800 and ask to speak with Allison Preston or visit our website at davismiles.com
Allison Preston is an Attorney at Davis Miles McGuire Gardner, PLLC and focuses her practice on homeowners’ association law, including, drafting and amending restrictive covenants, advising associations on covenant violations, litigating enforcement actions. etc. This article is intended to provide general information about the law designed to help users safely cope with their own legal needs. But legal information is not the same as legal advice — the application of law to an individual’s specific circumstances. Although we go to great lengths to make sure our information is accurate and useful, we recommend you consult Davis Miles McGuire Gardner, PLLC (or the law firm of your choice) if you want professional assurance that our information, and your interpretation of it, is appropriate to your particular situation.