Restrictive Covenants

Many properties have limitations imposed on them due to existing restrictive covenants which are deed restrictions and are usually put in place by the original developer, often to prevent the buyer from using the land in a way which the developer feels could cause harm to land which the developer has retained.

Restrictions give a development a more standard appearance, and control some of the activities that take place within its boundaries. When enforced, covenants protect property values.

Restrictive covenants may also have been imposed by the local council if the property is an ex council owned property.

Restrictive covenants can be wide and varied but common restrictions and conditions that are imposed are:

• Not to erect any building or structures on the land that has been acquired
• Not to use the land for any business activity
• Not to use the land other than for agricultural use and not to carry out any building or residential development Set backs (how far homes must be from streets and interior lot lines).
• Easements (such as a pathway for power lines or roads).
• Fees for road maintenance or amenities.
• Exterior appearance such as paint colours
• Rules about pets and other animals (for instance: no breeding for profit, no livestock, no unchained pets).
• Regulations dealing with in-home businesses and home rentals.
• Rules that limit tree-cutting
• Clauses that dictate what type of fencing can be used, or that forbid all types of fencing.
• Clauses to reduce clutter on lots, such as prohibiting owners from storing a vehicle that doesn't run within view of others, or parking a recreational vehicle on the property.

Such restrictions could prevent the buyer and future owners from gaining the full value and potential of the land, especially if they are restricted from extending or building another house.

It is quite often the case that restrictive covenants which appear within the legal title of a property are not correctly drawn or similarly they may not be enforceable for other legal or procedural defects in the way they have been created.

The law in relation to the enforceability of restrictive covenants can be complex so it is well worth taking advice to determine just how effective a restrictive covenant is or whether it is still enforceable.

Your solicitor should check on any restrictive covenants when you buy a property and advise you of any limitations. It is always a good idea to check your deeds before carrying out any extension project and your solicitor should be pleased to do this for you.