What You Should Know About Protective Convenants on Real Estate
“Live Free or Die.” As New Hampshirites -- or wannabe New
Hampshirites -- we pride ourselves on our stubborn
independence. But our state motto doesn’t always apply to our
real estate purchases.
If you think you can simply buy a piece of land and do with it
whatever you want, think again. Regardless how many times
you shout “Live free or die,” you better pay close attention to
the limitations placed on your property, such as zoning codes,
protective covenants, and deed restrictions.
Most of us can understand the value of zoning. Zoning codes
keep urban sprawl in check, protect farmland and the
environment, and regulate where individuals and corporations
can and cannot do business. But covenants and restrictive
deeds can be persnickety and vexing arrangements, prone to
raising the ire of independent-minded or just plain
cantankerous property owners.
For example, how would you react if someone in your
neighborhood homeowners association told you that you
couldn’t display your American flag? That sounds like it flies in
the face of a “Live Free or Die” mentality. Yet, many protective
convents placed on property prohibit installing flagpoles,
basketball hoops, or clotheslines.
Protective covenants are private restrictions that limit the use
of real property. They are often created by deed and can bind
all subsequent purchasers of the land, or they may be binding
only between the original seller and buyer. Other restrictions
may be enforced through covenants and bylaws established by
homeowners associations or condominium associations.
For the most part, protective covenants are intended to
preserve environmental assets and property values. To protect
the environment, for example, covenants may restrict the use
of wetlands, ground water, timber, minerals, and other natural
resources located on site. They may preserve easements
between residential property and wildlife areas. Or they may
place exacting restrictions on drainage, waste control,
foundation placement, and setbacks from waterlines or
shorelines.
Covenants that are intended to protect property value may
govern architectural style ... and to some degree, lifestyles. For
example, a condominium association may prohibit smoking; a
neighborhood may restrict pet ownership; and a subdivision
may restrict the number of vehicles you can park in your
driveway.
What’s more, protective covenants can be more restrictive than
local zoning ordinances, especially those established by
homeowners associations. For example, one local
homeowners association dictates that dogs and cats must be
on a leash when outside the owner’s lot. That makes sense for
dogs. But how many cats have you seen on a leash?
The same association prohibits dog houses, TV or radio
antennas, swing sets, basketball backstops, exercise
equipment, clotheslines, outbuildings, and home businesses of
any kind. The association also prohibits repair or mechanical
work on automobiles parked in driveways.
Undoubtedly, this is exactly how the property owners who live
there like it. In their eyes, such rules maintain harmony, peace,
and property values. But if you’re they type of person who likes
to change your own oil and relax to the giggles and squeals of
kids playing on a swing set, this neighborhood is definitely not
for you.
And you may be harder pressed to find a neighborhood that is.
In 1970, there were approximately 70,000 homeowner
associations nationwide. Today, there are more than 230,000.
And they all have rules.
Common deed restrictions include architectural and
landscaping control, minimum setback requirements,
restrictions on paint color and exterior lightening, and
regulations on land use and pet ownership. They may dictate
the size of a fence or whether you can or cannot hold a garage
sale.
As a homebuyer, pay careful attention to all protective
covenants. Before you agree to buy, you should be presented
with a declaration of all applicable rules. You will find it far
easier to find a neighborhood that shares your values than to
fight a neighborhood that doesn’t. If you choose to fight local
covenants, your battle will come at the cost of legal fees,
stress, and the alienation of most of your neighbors.
On the other hand, some restrictions may not be legal at all.
Neighborhood associations should not, for example,
discriminate based on color, religion, national origin, sex, age,
disability, or familial status. Or it’s possible that a subdivision’s
covenants may violate the state’s right-to-farm policy.
If you think that a restrictive covenant violates fair housing laws
or principles, contact your lawyer. Or you can call the New
Hampshire Fair Housing Project hotline at 1-800-921-1115.
If , however, you think the covenants are simply unreasonable,
maybe you should look at a different neighborhood.
