In a deed, a grantee may agree to do something or refrain from doing certain acts. This agreement will become a binding contract between the grantor and the grantee. An example would be an agreement to maintain fences on the property or that the property will only be used for residential purposes. This kind of covenant is binding, not only between the grantor and the grantee, but also runs with the land. This means that anyone acquiring the land from the grantee is also bound by the covenant of the grantee. A covenant that provides that the grantee will refrain from certain conduct is called a restrictive or protective covenant. For example, there may be a covenant that no mobile home shall be placed on the property.
A restrictive or protective covenant may limit the kind of structure that can be placed on the property and may also restrict the use that can be made of the land. For example, when a tract of land is developed for individual lots and homes to be built, it is common to use the same restrictive covenants in all of the deeds in order to cause uniform restrictions and patterns on the property. For example, the developer may provide that no home may be built under a certain number of square feet. Any person acquiring a lot within the tract will be bound by the restrictions if they are placed in the deed or a prior recorded deed. Also, these restrictive covenants may be placed in a document at the outset of the development entitled "Restrictive Covenants," and list all the restrictive covenants that will apply to the tracts of land being developed. Any subsequent deed can then refer back to the book and page number where these restrictive covenants are recorded. Any person owning one of the lots in the tract may bring suit against another lot owner to enforce the restrictive covenants. However, restrictive covenants may be abandoned or not enforceable by estoppel if the restrictive covenants are violated openly for a sufficient period of time in order for a Court to declare that the restriction has been abandoned.
Restrictive Covenants Without Hoa In Wayne
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Without an HOA, the responsibility falls squarely on the shoulders of individual homeowners. If someone's breaking the rules, it's up to their neighbors to notice and then do something about it. That's right; your friendly (or not-so-friendly) neighbors actually have the legal standing to enforce deed restrictions.
That a party has made a covenant can often be seen by the use of words such as “promise,” “undertake,” or “agree.” A “condition,” on the other hand, is a contingency, the happening of which may either excuse or trigger the obligation of a party to do something. Conditions can be either precedent or subsequent.
A real covenant is only enforceable if it was created intentionally, it relates to the property in question, and two kinds of privity are established. Additionally, a real covenant must be in writing. The party capable of enforcing the covenant depends on whether the burden or the benefit runs with the land.
The four standard elements to establish a covenant that runs with the land include: Intent to run with the land at time of covenant formation. Whether the subsequent landowner has notice. Whether the covenant has touches and concerns the land. If horizontal/mutual and vertical privity exists between the parties.
An HOA cannot technically “force” you to sell your home for not following the HOA rules. However, in an extreme case it could put a lien on your home, and then choose to foreclose on the lien.
A real covenant is only enforceable if it was created intentionally, it relates to the property in question, and two kinds of privity are established. Additionally, a real covenant must be in writing. The party capable of enforcing the covenant depends on whether the burden or the benefit runs with the land.
Cities and counties do not enforce covenants. It is up to the individual homeowners living within the specified area to enforce them. This can be done through a homeowners association or on an individual basis if there is no HOA.
To officially end the restrictive covenants, it may be necessary to file a lawsuit seeking a declaration from a court that the covenants are no longer enforceable. This can be a complex legal process that may require the assistance of an attorney.
If a deed restriction is not enforceable, you can choose to ignore it and take on the risk of a neighbor filing suit, or you can seek out a judge's ruling to have the covenant removed from the deed. Obtaining that ruling is easier when no one is actively enforcing the covenant.
My limited understanding is, restrictive covenants are only enforceable by a home owners association created among them. A local government isn't going to swoop in and enforce, or defend, a covenant that you created on your property. The local government is only concerned with land use ordinance's and state laws.