According to the duhaime.org legal dictionary, a restrictive covenant definition is: “A contract in which a party agrees to be restricted in some regards as to future conduct.”
With respect to real estate, restrictive covenants dictate what property owners must do, or may not do with or on their property, and are generally agreed upon when the owner purchases the property. These agreements ostensibly protect property values.
History of restrictive covenants in residential neighborhoods
Although the idea of covenants has been around for centuries, the recent history of this type of contractual agreement in housing developments reveals its dark side. For many years, restrictive covenants were used to prevent members of certain minority groups from moving into white neighborhoods. In other words, the residents of a neighborhood would agree not to sell or rent to specified “racial,” religious, or other minority groups, and anyone subsequently moving into the neighborhood would be obliged to agree to the same terms (LawBrain, “Restrictive Covenant”)
Thankfully, the legal standing of this discriminatory practice in the United States ended with a Supreme Court decision in 1948 (Shelley v. Kraemer, 334 U.S. 1, 68 S. Ct. 836, 92 L. Ed. 1161), and the Fair Housing Act of 1968. Restrictive covenants are still routinely used, however, to legally enforce conformity in residential neighborhoods.
Agreements to protect property values
The justification for putting restrictive covenants in place is that they protect the value of real estate by ensuring that the actions of residents will not result in the neighborhood becoming less desirable. Typically, a developer of a new subdivision stipulates such things as:
- minimum size of homes
- how far homes must be from the road and other property lines
- whether detached buildings are allowed
- whether homes are to be single family dwellings only, or can include apartments, legal suites etc.
Frequently such covenants go even further and may include:
- controlling the extent and design of walls and fencing allowed
- stipulating whether, and what type of, swimming pools are acceptable
- restrictions on cutting trees
- limiting business activity and signs for advertisements
- forbidding rearing of animals
Enforcement of restrictive covenants
Property agreements attach themselves to the property: when the property changes hands, the new owner is bound by the requirements. Enforcement is typically complaint driven with other property owners reporting violations. Though developers initially enforce regulations, neighborhood associations typically take over for the long term. The special interests and/or preferences of a majority of residents may result in further restrictions of a more exclusive nature:
- a ban on family pets such as cats and/or dogs
- prohibition of clotheslines
- a requirement that cars must be kept in the garage
- requirements for positioning of radio aerials or satellite receivers
- limitation of what may be stored on the property (trailers, boats, building materials etc.)
- prohibition of virtually anything to which like-minded people could conceivably object
While it’s reasonable to agree with the intent of restrictive covenants, when taken too far they become instruments of control that interfere unnecessarily with a property owner’s enjoyment of his or her own land and dwelling place. Some are clearly not so much about property value, and more about the personal values of those writing the rules.
In addition, restrictive covenants that forbid clotheslines, or reflect zero tolerance for urban farming and other means of home income generation, are likely to meet with increased resistance in the future as people move toward more sustainable and environmentally friendly lifestyles.
Anyone considering buying real property should be sure to ask about and carefully consider any restrictive covenants in place in the neighborhood.
Rosemary Drisdelle - Rosemary Drisdelle has been published many times as a nonfiction writer and several times as a poet. Her first book, Parasites: Tales of ...
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