Chapter 14 - § 14.4 • RESTRICTIVE COVENANTS


§ 14.4.1—In General

An owner of real property has the legal right to dispose of it either absolutely or conditionally, or to regulate the manner in which it may be used and occupied as he or she deems best and proper, provided that the conditions and restrictions are not violative of some public good or subversive of the public interests128

Restrictive covenants (sometimes referred to as "protective covenants") placed on land for the benefit of purchasers within a subdivision are valid and not against public policy. Restrictive covenants guarantee the purchaser of residential property that his or her house will be protected against adjacent construction which would impair its value and that a general plan will be followed.129 General plan restrictions are for the benefit of all the purchasers130 and give a right in the nature of an easement enforceable in equity against all purchasers.131 One who purchases with knowledge of the restrictions is bound by them regardless of whether the restrictions are in his or her deed.132

§ 14.4.2—Creation of Restrictive Covenants

Restrictions may be imposed upon land or upon a subdivision as a whole, or may be imposed upon each parcel of land as it is conveyed. But one cannot impose restrictions on property after the full equitable title has been transferred to another.133

Restrictions upon land or a subdivision as a whole may be created by a document recorded by the owner134 or by a plat containing the restrictions.135 The restrictions need not be recorded to be effective; the recording of a declaration of a common-interest community which creates and grants broad powers to an association provides constructive notice to owners in the community that the property is subject to unrecorded restrictions.136

Restrictions imposed on individual parcels are imposed by covenants or conditions in a conveyance.137 The fact that all deeds in a subdivision contain identical restrictions discloses a general intent of the grantor to impose restrictions for the benefit of all lot owners as against one another.138

§ 14.4.3—Modification or Termination of Restrictive Covenants

The grantor's reservation of power to amend restrictive covenants is valid if it is exercised in a reasonable manner so as not to destroy the general scheme or plan of development for the property. In order to exercise the reserved power to amend the restrictive covenants, the grantor must have an interest in the property subject to the covenants.139 The right to "change" or "modify" covenants includes the right to allow for the addition of new covenants.140 A covenant running with the land in a subdivision may be modified or terminated if the developer complies with the requirements contained in the covenants.141 If the covenant contains a specific procedure for modification, that procedure must be strictly followed unless there is unanimous consent to the modification of all landowners within the subdivision.142 It has been held that the developer retains the right to modify the covenants until the first lot is sold, but if the developer sells one or more lots prior to the attempted modification, the modification is invalid where those who purchased in the subdivision previously did so upon the expectation of the benefit of the covenants.143

Under a provision that covenants shall be binding for an initial period and then automatically extended for successive periods of ten years unless an instrument signed by a majority of the then owners of all the lots in the subdivision has been recorded, agreeing to change said covenants, in whole or in part, an amendment is not effective until the end of the initial period or extension during which it is adapted.144 Thus, an amendment recorded two days after the end of the initial period is not effective at least until the end of the ten-year period during which it is recorded.145

One who purchases with knowledge of the association's power to amend the Declaration cannot claim a violation of his or her "due process" rights as a result of any such amendment.146

§ 14.4.4—Interpretation of Restrictive Covenants

Interpretation of a covenant is a question of law.147 If the trial court's determination is based upon its construction of the applicable covenants, then that determination is not binding on the appellate court.148 The rules of construction for determining whether provisions of a document are ambiguous are applicable to protective covenants.149 In determining whether a covenant is ambiguous, the language must be construed in harmony with the plain, ordinary, and commonly accepted meaning of the words used.150 Where the express language of a covenant is ambiguous and uncertain in its application to the facts, the intention of the parties to the covenants controls, and if possible, that intention is to be ascertained from the entire language of the covenant agreement in connection with the subject matter of the covenants.151 In the absence of contrary equitable or legal restrictions, covenants that are clear on their face must be enforced as written.152 When interpreting a restrictive covenant that is definite in its terms, courts must follow the dictates of plain English.153 The plain language of a restrictive covenant must be interpreted considering its underlying purpose.154 A court cannot rewrite covenants or add terms that are not contained in the covenants.155 Nevertheless, equity may fashion a remedy to effect justice suitable to the circumstances of the case.156

Covenants must be construed as a whole in view of their underlying purpose,157 giving effect to all provisions contained therein.158 Building restrictions and all restrictions as to the use or occupancy of property must be strictly construed.159 In construing a covenant, all doubts must be resolved against the restriction and in favor of free and unrestricted use of property.160 However, this rule has no application when the language of the covenant is clear.161 Covenants may impose a more restricted use of land than is permitted under applicable zoning ordinances.162

§ 14.4.5—Interpretation of Particular Restrictions

Character and Use of Structures

Single-family dwelling: A covenant that "[a]ll sites shall be for residential use only, with only one single-family dwelling permitted on any site" prescribe only the type of structure permitted on the property and not the type of use that can be made of the property.163 A covenant that "[a]ll lots shall be used exclusively for single-dwellings . . . ." precludes the construction of a road across one lot in a subdivision as access to another parcel.164

Story: A covenant that "[t]he height of any dwelling house shall not exceed one story, measured from finished grade" is ambiguous and unenforceable where it does not contain definitions or provide concrete dimensions as to where the height would exceed "one story."165

Trailer house: The term "trailer house" as used in a deed restriction does not include a double-wide mobile home or manufactured housing.166

Residential use: The word "private" when used in connection with the word "residence" means a single-family residence. Therefore, a covenant that "no building shall be constructed upon said premises other than for private residence purposes" precludes the construction of a two-family dwelling.167 A covenant that "[a]ll sites shall be for residential use only, with only one single-family dwelling permitted on any site" is not violated by use for developmentally disabled children.168 Similarly, a covenant limiting use to "private single family residential purposes" is not violated by use for developmentally disabled adults where the covenant does not define the term "family."169

Stables and outbuildings: A stable is a building "incidental to residential use."170 An attached garage is not a stable or outbuilding.171

Lot: The term "lot" as used in an Amended Declaration has been held to refer to the original unit of land in the subdivision, as originally platted by the developer.172

Use of Land

A covenant may go farther than prescribing a building requirement and may restrict the use of land. Thus, a covenant that "none of said lots shall be . . . occupied for other than private single family residential purposes" precludes the use of a lot as a roadway.173 Similarly, a covenant that certain land shall not be used "directly or indirectly in any restaurant operation" precludes the use of such land as a parking lot and means of access to a restaurant.174 A covenant permitting the keeping of only "dogs, cats or other household pets" precludes the keeping of a flock of 21 assorted poultry.175 A covenant prohibiting the erection of fences, with exceptions for "fences around dwellings and yards" is breached by a fence around an area of almost 40 acres.176

§ 14.4.6—Approval of Plans

The power of approval is an integral part of the covenant requiring owners to submit plans for approval. It is not the right of approval, in isolation, which is intended to run with the land, but rather the entire covenant—both the obligation of the grantees to submit plans together with the right reserved to the declarant to review such plans—that passes to successive grantees. The right of approval does not pass to the grantees.177

Restrictive covenants that require property owners to have building plans approved by an architectural control committee have been recognized as one method by which guarantees of value and general plan of construction can be accomplished and maintained.178 An architectural control committee acts not only to prevent construction of buildings that would violate a general plan of construction, but also to assure property owners, through approval of building and site plans, that their plans conform to that scheme.179

So long as the intention of the covenants is clear, restrictive covenants may be upheld as against the contention that they lack a specific framework within...

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