In a deed, a grantee may agree to do something or refrain from doing certain acts. This agreement will become a binding contract between the grantor and the grantee. An example would be an agreement to maintain fences on the property or that the property will only be used for residential purposes. This kind of covenant is binding, not only between the grantor and the grantee, but also runs with the land. This means that anyone acquiring the land from the grantee is also bound by the covenant of the grantee. A covenant that provides that the grantee will refrain from certain conduct is called a restrictive or protective covenant. For example, there may be a covenant that no mobile home shall be placed on the property.
A restrictive or protective covenant may limit the kind of structure that can be placed on the property and may also restrict the use that can be made of the land. For example, when a tract of land is developed for individual lots and homes to be built, it is common to use the same restrictive covenants in all of the deeds in order to cause uniform restrictions and patterns on the property. For example, the developer may provide that no home may be built under a certain number of square feet. Any person acquiring a lot within the tract will be bound by the restrictions if they are placed in the deed or a prior recorded deed. Also, these restrictive covenants may be placed in a document at the outset of the development entitled "Restrictive Covenants," and list all the restrictive covenants that will apply to the tracts of land being developed. Any subsequent deed can then refer back to the book and page number where these restrictive covenants are recorded. Any person owning one of the lots in the tract may bring suit against another lot owner to enforce the restrictive covenants. However, restrictive covenants may be abandoned or not enforceable by estoppel if the restrictive covenants are violated openly for a sufficient period of time in order for a Court to declare that the restriction has been abandoned.
The following form shows one way in which Restrictive or Protective Covenants may be amended.
Colorado Amendment to Protective Covenant
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Colorado law (C.R.S. § 38-33.3-123) imposes a one-year statute of limitations on actions brought to enforce the terms of any building restriction or compel the removal of any building or improvement on land.
Although this case relates directly to development of property, it is clear that modifying restrictive covenants of any nature or kind is possible if deemed reasonable in the circumstances by the courts, which will of course be determined on a case-by-case basis.
If your covenants are completely outdated (over 20 years old) or were poorly drafted, a complete overhaul may be a good idea. This is typically a lengthy process that will eventually result in a completely new document for the community.
Likewise, many associations have a precise protocol for imposing new covenants or restrictions. Typically, an amendment must be proposed by a majority of the HOA's board, or by a written petition signed by a sufficient percentage of homeowners.
Colorado has a State HOA Office. The Office registers HOAs but does not regulate HOAs or the HOA management companies that manage most HOAs. The Office is administrative and provides no consumer protections.
How Are Covenants Amended?Send at least two notices of the proposed amendment to all owners that are entitles to vote on it.Discuss the proposed amendment during at least one meeting of the association.More items...?
The Colorado Legislature enacted CCIOA effective in 1992 to regulate Colorado HOAs, however, not all provisions apply to pre-1992 HOAs. CCIOA is a very long and complicated statute and has been amended over 30 times.
If there is a restrictive covenant on your property you may be able to remove it. The first step would be to negotiate with the original developer or landowner to enter into a formal agreement to remove the covenants from the title.
Generally, it is difficult to enforce a breach of covenant after 20 years. The Limitation Act 1980 also states that claims in land should be brought within 12 years. However, the time starts to run from when the breach occurs, not the date of the deed.