Restrictive covenant

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A restrictive covenant is a legal obligation imposed in a deed by the seller upon the buyer of real estate to do or not to do something. Such restrictions frequently "run with the land" and are enforceable on subsequent buyers of the property. Examples might be to maintain a property in a reasonable state of repair, to preserve a sight-line for a neighbouring property, not to run a business from a residence, or not to build on certain parts of the property.

Covenants were originally enforced in equity as servitudes for the benefit of the owners of land affected thereby. Previously the enforceability of covenants and servitudes depended upon compliance with strict requirements having to do with privity of estate between the owners of the affected parcels of land, but these requirements have diminished over time in favor of a general policy of enforcement of any covenants which are reasonable in terms and "touch or concern" the land affected.

Some are very simple and are meant only to protect a neighborhood from homeowners destroying trees or historic things or otherwise directly harming property values. Some go to an extreme and try to dictate absolutely everything a homeowner can do to the exterior, including the number of non-familial tenants one may have, or needing permission to re-paint the home unless it will be exactly the same color. Other extremes include dictating exactly when holiday decorations are allowed up, prohibiting the raising of a hood on any car (even to check it for safety), even prohibiting any car from being parked outside a garage at all. Many communities also forbid amateur radio or outdoor television antennas; however, see discussion below.

Some have accused homeowners associations of selective enforcement of these rules, making a case only when it is something (or someone) another person dislikes. Breaking a rule, even unintentionally, can bring fines or even a lien on the home.

A restrictive covenant differs from a zoning regulation in that its creation and enforcement is a matter of contract between the landowners whose properties are affected by it, rather than an exercise of the governmental police power.

[edit] Segregation in the History of Restrictive Covenants

In many cases before the 1960's, these covenants were used for segregationist purposes. These are some samples of that were agreed by different neighborhoods in Seattle, Washington.

• November 1927 (Capitol Hill) - The parties... agree each with the others that no part of the lands owned by them shall ever be used or occupied by or sold, conveyed, lessed, rented or given to Negroes or any person of Negro blood.
• April 1928 (Broadmoor) - No part of said property hereby conveyed shall ever be used or occupied by any Hebrew or by any person of the Ethioipian, Malay or any Asiatic race...
• May 1938 (Durham, North Carolina (Deeds issued by Hope Valley Realty Co.) - No property or building shall be owned or occupied by the colored race, except such buildings as may be constructed by the owners and residents of the property, for the use of their servants.
• February 7, 1947 (Queen Anne Park, Laguna Vista, Rayville, Carleton Park) - No person or persons of Asiatic, African or Negro blood, lineage or extraction shall be permitted to occupy a portion of said property, or any building thereon, except domestic servant or servants may be actually and in good faith employed by white occupants of said premises.
• October 31, 1947 (Laurelhurst, Victory Heights, Green Lake Circle) - No person of other than the Caucasian race shall use or occupy any building or lot except as servants domesticated with any owner or tenant.
• Article 34 of Code of Ethics for realtors in Seattle stated: A Realtor should never be instrumental in introducing into a neighborhood a character of property or occupancy, members of any race or nationality, or any individual whose presence will clearly be detrimental to property values in that neighborhood.

In addition to neighborhoods, entire towns were described by James W. Loewen in Sundown Towns as being completely racially exclusive beyond just buying land, but having to leave by nightfall.

In the case of Shelley v. Kraemer, the United States Supreme Court ruled that it would be unconstitutional for the courts to enforce such a covenant, and such covenants no longer have any force where they exist.

In addition, other covenants have been unenforceable as being against the police power. For example, the Federal Communications Commission has ruled that a covenant cannot restrict a homeowner's right in placing an antenna so as to receive any signal broadcast over the public airwaves (whether radio or television). The same decision also prohibits any local law from having restrictions over use of unlicensed airwaves. For example, where an airport authority insists that airport lessees such as airlines use its wireless network for data transmission (and thus pay for the privilege), the FCC has stated such requirements are invalid. So would be a local law or covenant restricting use of transmission equipment either licensed by the FCC or which the FCC has declared a license is not required.

[edit] See also

• Timeline of Racial Tension in Omaha, Nebraska