Is there any way to get out of a restrictive covenant?


Taking Action

When a homeowner's association (HOA) is monitoring deed restrictions in a neighborhood, you will need to take a more proactive approach to fighting a restrictive covenant. The purpose of an HOA is to ensure that property values for all residents stay at a desirable level, which means enforcing restrictions.

The first step is to read the deed and its restrictions carefully. In HOA neighborhoods, the restrictions are usually in a secondary document, not the deed itself. This document, usually called a list of covenants, conditions and restrictions (CC&Rs), contains procedures for altering restrictive covenants. Usually that means applying to the HOA for permission.

Homeowner's associations have a reputation for being strict and uncompromising, but how willing the HOA is to allow changes will vary by neighborhood. Some are more lenient, some are unbelievably strict. In most HOAs, you can apply for permission to stray from a restriction slightly, for example, by asking to build a privacy fence when only chest level fences are allowed. This is called a variance. You can also apply for a waiver, which is typically more difficult. A waiver is asking for permission to completely ignore a restriction [source: Rossi, et al]. For example, adding a back deck when decks aren't allowed. In most HOAs, there is a committee in charge of granting or denying such requests. Again, neighborhoods and HOAs vary, but in general, the more modest the request, the more likely it will be allowed.

If the HOA won't grant a waiver or a variance, you can attempt to have the restriction changed, or removed from every deed in the neighborhood. This usually requires a majority vote of the members of an association. That can be difficult to obtain, since typically only a dedicated few attend HOA meetings [source: National Association of REALTORS]. So, it might take a diligent campaign of door-knocking and persuading to get the required votes.

If none of those solutions succeed, you can seek legal action against the HOA. A judge can rule to void the restriction from your deed, or from the common CC&Rs of the association. This is usually very difficult. In most cases, you will have to prove that the HOA does not have the right to enforce the restriction, or that they have not exercised the right. This involves demonstrating that there is a pattern of other residents breaking the covenant without reprisal. In an extremely strict HOA, this can be especially challenging [source: Fambrough].

The best solution is to buy carefully, and make sure you fully understand any restrictive covenants that apply to a property before you make the purchase.

Related Articles

Sources

  • American Bar Association "Family Legal Guide: Chapter 5." (Feb. 3, 2011)http://www.americanbar.org/groups/public_education/resources/law_issues_for_consumers/books_family_legal_guide_home.html
  • Barta, Patrick. "Eliminating Restrictions from a Property Deed." The Wall Street Journal. April 25, 2003. (Feb. 2, 2011)http://online.wsj.com/article/SB121379918796784349.html
  • Bray, Ilona, Alayna Schroeder and Marcia Stewart. "Nolo's Essential Guide to Buying Your First Home." Nolo. February 2009.
  • Cameron, John G., Jr. "Restrictive Covenants, Reciprocal Negative Easements, and Building
  • and Use Restrictions." The Practical Real Estate Lawyer. September 2010. (Feb. 2, 2011)http://files.ali-aba.org/thumbs/datastorage/lacidoirep/articles/PREL1009-Cameron_thumb.pdf
  • Dehring, Carolyn A. and Melissa S. Lind. "Residential Land-Use Controls and Land Values: Zoning and Covenant Interactions." Land Economics. Vol.83, no. 4. Page 445. November 2007.
  • Fambrough, Judon and Cindy Dickson. "Living with Deed Restrictions." Tierra Grande. 1983. (Feb. 3, 2011)http://recenter.tamu.edu/pdf/410.pdf
  • Frazer, Hubbard, Brandt, Trask & Yacavone. "Restrictive Covenants." (Feb. 4, 2011)http://www.fhbty.com/newsletters/Real-Estate/?launch_pg=NewsletterDetailLayout&launch_sel=1000327&title=Restrictive+Covenants
  • McKenzie, Evan. "Privatopia." Yale University Press. 1994.
  • National Association of REALTORS. "What about the CC&Rs?" (Feb. 3, 2011)http://www.realtor.com/basics/condos/ccr.asp?source=hp
  • Rose, Jule. "Myers Park HOA Pays $17,500 To Settle Dispute With NAACP." WFAE 90.7 FM. Jan. 17, 2011. (Feb. 15, 2011)http://www.wfae.org/wfae/stat_search.cfm?id=6817&action=display
  • Rossi, Hamerslough, Reischl & Chuck. "CC&R Basics." (Feb. 2, 2011)http://realestate.findlaw.com/covenants-conditions-restrictions/ccr-basics.html
  • Shayne, Beth. "NAACP Takes on Myers Park Over 'Whites Only' Deed." WCNC.com. Dec. 14, 2009. (Feb. 3, 2011)http://www.wcnc.com/news/local/NAACP-takes-on-Myers-Park-over-Whites-Only-deed-79275782.html
  • Snell, David. "Restrictive Covenants: A Stop on Your Plot?" Homebuilding and Renovating. December 2009. (Feb. 3, 2011)http://www.homebuilding.co.uk/feature/restrictive-covenants
  • Sullivan, Bryan. "Yankee, Stay Home! Southern Hospitality on Hold." ABA Journal. April 1998.
  • University of Washington, The Seattle Civil Rights and Labor History Project. "Racial Restrictive Covenants." (Feb. 3, 2011)http://depts.washington.edu/civilr/covenants.htm

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