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.
Amendment to Protective Covenant
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Description Sample Amendment To Cc Rs
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FAQ
Can a restrictive covenant be removed? For prospective land or property purchasers, it may be possible to speak to the vendor or 'successor in title' with a view to having any restriction lifted. In other words, you may be able to remove your restrictive covenant- but there are no guarantees.
The Declaration of CC&Rs is the legal document that lays out the guidelines for the planned community. The CC&Rs are usually recorded in the land records in the county where the property is located and are legally binding.
Covenants, Conditions & Restrictions (CC&Rs) This is a legally binding document that is officially recorded and filed with your state. Your CC&Rs cover the rights and obligations of the homeowners association to its members and vice versa.
Restrictive covenants can be modified or discharged either by agreement or unity of seisin (whereby both the dominant and serviant land (i.e. the two relevant parts of land that has the benefit and burden of the covenant) passes into the hands of the same person) or under Section 84 of the Law of Property Act 1925 by
Under the Davis-Stirling Act, amendment of CC&Rs requires approval by the percentage of members required by the declaration and any other person whose approval is required by that declaration. If the CC&Rs are silent on the minimum percentage required, an amendment may be authorized by a majority of all owners.
Civil Code section 1365 provides a mechanism for extending the expiration date with a simple majority vote at no cost to the association. Even if CC&Rs; expire, no one is thrown into jail. The development and association do not cease to exist and are not prevented from doing business.
Section 84 of the Law of Property Act 1925 states the Lands Chamber has the legal discretion to discharge or modify most restrictive covenants affecting land but not all.If there will be damage to the beneficiary due to the loss or change of the covenant.
CC&Rs, most commonly drafted and enforced through homeowners' associations (HOAs), often restrict what homeowners can do on their property. For example, some CC&Rs do not allow homeowners to hang their laundry out to dry, set lawn maintenance standards, or prohibit home additions or major changes.
Uniform covenants for residential subdivisions often allow for amendments without unanimous consent of the owners.The covenants may authorize a majority, or a specified percentage of homeowners, to amend the covenants. Such provisions are valid and enforceable.