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Restrictive Covenants: FAQs

  1. What is a Declaration of Restrictive Covenants
  2. Can property restrictions dictate the style of my home or the colors I choose for its exterior?
  3. Can the developer control my choice of builder or real estate agent?
  4. Don't my constitutional rights prevail over the restrictive covenants?
  5. What if a purchaser doesn't want to follow the restrictive covenants affecting the property?

What is a Declaration of Restrictive Covenants

Unit ownership in both condo and townhouse projects is subject to certain restrictive covenants. These are usually embodied in a recorded legal document called a "Declaration of Condominium" or "Declaration of Restrictive Covenants" which is recorded at the county Register of Deeds office The declaration describes the nature of the project and established rules to govern the use of the units and common areas. For example, the declaration may limit the property to residential use, require that units be a minimum size and certain architectural style, etc.

Can property restrictions dictate the style of my home or the colors I choose for its exterior?

YES, if the restrictive covenants are properly drawn and consistently enforced.

Can the developer control my choice of builder or real estate agent?

NOT IN MOST CASES. However a developer may lawfully refuse to sell directly to you and instead require you to purchase a lot and home from a particular builder.A developer may include the real estate agent's commission in the home's purchase price.

Don't my constitutional rights prevail over the restrictive covenants?

NOT IN ALL CASES. If you choose to purchase a restricted property, you agree to abide by the restrictions. Display of signs, flags or banners, certain uses of the property, storage of personal property, keeping of animals and other practices can lawfully be controlled by restrictive covenants if they are properly enforced.

What if a purchaser doesn't want to follow the restrictive covenants affecting the property?

Purchasers take property subject to the restrictions and are bound to follow them, even if they did not actually know the property was subject to restrictive covenants. Once restrictions are properly imposed upon a property, they "run with the land" and are binding on the owner and all subsequent purchasers. No owner or purchaser can use the property for any purposes that violates the restrictions.