Housing "covenants"

[dlminehart]

I was kinda surprised, when buying my first and only house, to find that there were some stipulations known as covenants that covered things like how high a fence one could put in the front yard. This was something that apparently dated from the time the block was developed back in the '60s, and it seemed strange to me that it could still be binding on new owners of individual properties decades later.

I understand that some properties used to have covenants outlawing property sales to blacks or Jews, no longer enforceable. Seems odd to me that the other stipulations are still in effect. Anyone know how/why this is?

[mschrank]

It's a way for a few power hungry old-timers to control which color of biege you can paint your house!

For some interesting reading on this topic, I refer you to this thread on this site.

[cwsmith]

Covenants are different than "homeowner associations" in which I believe mschrank is referring. With HOA's, there is usually a "committee" that represents the neighborhood and they basically make the rules or at least "rulings" on changes or percieved problems in the neighborhood. As mentioned, these can often seem a bit biased as the committee is often made up of the oldest and/or most influencial people in the neighborhood. However, the HOA is often put on the legal defensive, when they are challenged by new homeowners who are willing to make their case.

Covenant's however are much harder to fight. Generally, they are established rules and guidelines that were reviewed and legally established, by the local government, when the neighborhood was initially planned. These limiting rules are in effect "laws" which protect the neighborhood from things that might be considered annoyances or property value infringements. Before anyone buys a home, their attorney really needs to ensure that any and all Covenants are brought to the buyers attention. Covenants are almost impossible to overturn!

CWS

[JR]

Dave,

See atqpaul's recent thread about condos for MUCH discussion along these lines.

Bottom line = unless the covenant is either illegal (as in the cases of blacks and jews you mentioned) or has been somehow superceded by newer covenants or town laws, you're probably screwed.

JR

[scmhogg]

Dave,

Almost all transfers of property come with CC&Rs [Covenants, Conditions & Restrictions] attached. You are wise to read them. Many don't because they usually contain many pages of small type in arcane legal language.

They are binding on all holders of the title and their successors. You can only get them overturned, as noted by JR, if you can show that they impinge upon a Constitutional right. Such as free speech or racial or religious discrimination. Covenants that discriminate by age have been upheld in retirement communities.

The Supreme Court only outlawed racial covenants in 1948. Last year, a Missouri Congressman introduced legislation that would ask states to adopt a procedure that would make it easy to strike such covenants that still exist on many deeds throughout the country.

Steve

[Bruce Cohen]

Covenants are always part of the rules and regulations involved in zoning. As each type of building zone (commercial, regional shopping, multi-family, and amount of parcel size. These zoning ordinances define the size your building can be in relation to the property size, how far back reom the street your house must be and so on. In addition, are easements, these are granted by the original property owner to utilities, the municipality for sewer and run-off piping.

Covenants are pretty much similar, although they can be changed. In NY state, each town must have in addition to a zoning board, a zoning board of appeals (they may be one in the same).

If you can show a good reason to have a covenant changed, the town "may" grant you relief from that covenant and the problems it is causing you.

I live in a town house development (multi-family zoning) and although the town has had this law on the book ("No cooking within 10' of an occupied dwelling") they didnt enforce for the first 24 years I lived here. This year, due to a few deck fires, I can no longer grill (charcoal, natural or LP gas) at all. and there is nothing thqt be done.

Hope this gives you some more insight into better living in the 'burbs.

Bruce

[430752]

Huh...?

I dunno, I'm not too familiar, but I'd research the covenant(s). Easements run with the land, but usually have an expiration date. covenants, as I understand them, were created at the time of original deed transfer (or partial transfer in interest) in order to protect the grantor or sometimes grantee from something. I think covenants, unlike easements, are held to the four unities, which I can't fully recite here. But, generally the 4 unities are time, title, purpose and something. I likely have 50% of them wrong, but I thought, again not sure, that the idea of the 4 unities was that the covenant would remain while the original grantor existed, in the same land, not subdivided or etc., for a period specified, that the purpose was still a worthy one, or at least one the original parties decided was legit, and something else. The idea being that once circumstances changed to render the covenant arguable, then it may be void.

Again, I'm not too certain. But, something seriously sticks in my head that covenants are not the end-all-be-all. Of course, this applies more to traditional, single family homes or land which is not part of a hoa/condo/planned development thing. So, check it out - meaning the original covenant language, not a recitation of same. if it smells, or if you really don't like it, search out a real estate attorney and ask how much to research it. When I say I real estate attorney, I don't mean an attorney who practices door law (anything that walks thru the door), nor a mill - one that does hundreds of closings a year, but one which has a specialty in real estate and is not a mill. if your state does not require an attorney to buy/sell a home, then an attorney that claims s/he is a real estate attorney might qualify. otherwise, any attorney can research this, its only that you don't want to pay for the legwork, but rather get a reasonably solid answer for a hundred bucks or two.

Edit: crap, I just looked it up and black's law dictionary (websters for attorneys) has at least 60 different variations of various covenants. The good news is that it called it a first cousing to an easement, meaning less powerful. But, it also phrased that explanation as an easement allowing another to enter upon you land to do something, while a covenant only authorizes another to require you to do something (or refrain from doing) on your own land. But, it did state covenants are generally born from a promise in a deed. So, dunno why your deed (assuming the 2nd, 3rd or 4th from original deed still contains that covenant, since if it is a promise in a deed, then removing it from the deed would seem to destory the covenant. This gets into the four unities, above, where the original grantor passign the deed might destory it. I suppose the original covenant might have stayed in the deed if either or both (a) there is some side letter causing liablity to to grantor if he failed to include it in successor deeds or (b) some idiiot attorney didn't have the cahones to try to remove it. Whatever, you now really need to review the covenant, see what it says, and maybe contact an attorney based on that.


curt j.

[JR]

Covenants are always part of the rules and regulations involved in zoning.

This is a good point, Bruce. A covenant is a deed-based restriction. In the absence of HOA, the homeowner's recourse is the city, which may or may not be amenable to change.

Sometimes front fences are sometimes restricted by covenant in order to achieve some sort of cohesive look to a neighborhood. Special circumstances might make it worth applying for a variance. Or maybe not...

My sister lives in a big university town. Her previous home was on fraternity row. She's a pretty open-minded person, but after years of cleaning up beer cans and other refuse found after frat parties she petitioned the city to allow her to put a fence up between her property and the neighbor fraternity. In this case it was city ordinance covering the restriction. The city council would not budge. She sold the house.

JR

[scorrpio]

When you are in process of buying a house, there is a title search which establishes weather current owner is sole and undisputed owner, but also has to find out if there are any easements, covenants, restrictions, violations, and what not on the property. And it is a good idea to study the title search result thorouhgly. Nearly every property is subject to certain restrictions. Some are basics that go with zoning - that is, you cannot build a supermarket on a residential lot. Some are simply building codes.
There are often ways to outsmart a regulation. For example in case of a fence, I wonder if the fence covenant says anything about landscaping - like planting a row of particularly thorny bushes near the edge of your property. In the neighborhood I live in, there seem to be no fences between properties, but there are a lot of hedges.

[pierhogunn]

Most covenants are rules that are entered into through an agreement, and are considered voluntary simply because you can choose not to buy the property that has the rules attached to it.

Bruce, regarding the 10' rule, if you can prove that they haven't enforced the rule for some lengthy period of time, they may be estopped , not stopped, from further enforcing the rule.

Check out the use of esstopple (spelling) for getting your grilling rights back.

[Bruce Cohen]

Dan,

I Googled "esstopple, your spelling is correct. Unfortunately, it appears to apply to contracts between two parties, and even if it didn't, this 10 foot nonsence is considered part of the town's fire code, and when you get into the "health, wellfare and safety" stuff, its as if its been chiseled into stone. No chance of getting a reversal, or special dispension from the town. I've gone that route and used up all my outstanding markers from the local politicos.

So it looks like a "no barbecue" summer for me. Can we come and visit in time for dinner at your place?

Bruce

[Russianwolf]

a deck is not a dwelling, you can grill 10' away from your house unless the ordinance say specifically "10' from an occupied dwelling or any attachemnts to such dwelling"

alternately, why can't you grill in your yard but off the deck by 10 feet, or does your deck take up the whole yard?

[SteveJ]

It's always amazed me that people will spend $300K for a house but won't spend another $200 for an attorney to review the paper work. This is something I've always done and I've never regretted it.

Steve

[maxparot]

It's always amazed me that people will spend $300K for a house but won't spend another $200 for an attorney to review the paper work. This is something I've always done and I've never regretted it.

Steve

In some states an attorney isn't needed for the purchase and others require it. My feeling is the states that don't require attorneys should have full disclosure laws. Arizona does and it saved us a couple of thousand dollars as compared to New York State. It isn't just the attorney's fees but the additional paperwork and fees that go with it. Even the title search is less. Everything we needed to know was in the paperwork and explained to us line by line in the comfort of our home by the realtor. The sale went through in less than 30 days including inspections repairs and walk through.

As in everything else in the legal professions it is the the requirements of the law that prescribe whether or not a attorney is required. My appologies to any attorneys out there but if the laws and contracts were required to be written in "plain english" The average person would never need an attorney they would only be in judges positions and used for internation legal matters. This would put 75% of the attorneys out of work and is the reason that it isn't done.