Covenants, Conditions and Restrictions

October 26, 2015

Covenants, conditions, and restrictions aka CC&Rs are today’s topic. Dry? Yes, about like toast. Important? Only if you care about how you can use the property you own.

CC&Rs are embodied in a document which gets recorded by the County Recorder. CC&Rs will always include a legal description of the land they affect. Once they are recorded they constitute an agreement or contract between the individual parcels which are referenced or embodied in the legal description. If we assume CC&Rs which control 10 acres, it’s as if No. 1 has agreements with Nos. 2-10, No. 2 has agreements with No. 1 and Nos. 3-10, etc.

CC&Rs govern use issues. In a residential subdivision you can expect statements about home size (generally stated in total square footage), type of construction, number of stories and height and setback terms, whether animals are allowed, etc. Rare is the set of residential subdivision CC&Rs which does not have business use limitations and a requirement that vehicles be stored in garages or carports.

Once upon a time, CC&Rs placed restrictions on the racial and ethnic identity of owners. The U.S. Supreme Court, in Shelley v. Kraemer, 334 U.S. 1 (1948), struck down these restrictions. (I grew up in a neighborhood which did not allow owners of the Jewish persuasion, although by the time my family moved in in 1970, at least 30% of the owners were Jews.)*

The agreements are between lots/parcels, but it’s the owners at any given time who act. (Land, generally, is pretty passive.) Thus, in most case the owner of No. 1 can file suit to enforce violations by other owners. In addition, where a homeowners or property owners association exists, it also has enforcement authority.

CC7Rs will often include a “no waiver” clause. The provision does, at least to some extent, protect the property owners against an argument that failing to enforce violation A against No. 6 means violation A cannot be enforced against any property. Notwithstanding “no waiver” clauses I have had success in defending against violation claims where, for many years, enforcement has been minimal or non-existent.

CC&Rs will usually last for a long time. If they have an end date there will usually be a requirement for a super-majority agreement to extend them. On the other hand, some CC&Rs will extend automatically for 10 or more years at a time, unless a supermajority agrees to terminate them.

CC&Rs do matter. If you are buying property you need to read them. If you are remodeling, landscaping, or changing the use of your property, review the CC&Rs before you start spending money and doing stuff. Counsel can also be helpful when matters are not clear.

*Yaphank, NY is the subject of recent scrutiny because of its German-only policies. The skinny is in Nazi-Founded L.I. Town Restricted to ‘Germans Only’ Is Sued for Discrimination by Eric Levitz for New York magazine.


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