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Drafting Enforceable Restrictive Covenants

David Wilson

David Wilson

“Restrictive Covenants.”  Hearing that phrase has made homeowners and their respective Boards of Directors cringe since the beginning of time.  Everyone who has ever lived in a Homeowner’s Association is familiar with the idea that there are certain things you may and may not do with your property.  If not, you might want to check into that.

The original idea behind restrictive covenants was not some crazy person’s attempt to figure out a way to make homeowners’ lives more burdensome.  Instead—as many association’s “Declaration of Covenants, Conditions, and Restrictions” lay out—the idea is to work together to increase the value and desirability of all the homes in the association, not just one or two.  Just as in society in general, a community association creates rules by which the members agree to abide, and consequences for breaking the rules.

Homeowners often complain that the rules don’t make sense.  The Board is often frustrated at trying to enforce the rules of the association, some of which may not have been well-drafted or very clear in their application.  One common mistake that community associations often make in drafting restrictions is to use language that is too vague.

From an enforcement standpoint, there are at least two problems with vague language in a restrictive covenant.  The first problem is the fact that the law has always looked unfavorably on covenants that restrict the free use of property.  Because of the disfavored status of restricting what people can do with their property, courts have strictly construed ambiguities in favor of free use of the property.  For example, if an association wants to limit the type of animals that may be kept as pets, employing language such as:  “no large, scary, or annoying animals may be kept as pets on the property” would probably not be a good idea.  Large and scary are very much in the eye of the beholder.  What is annoying to one person may be adorable and loveable to another person.

The second problem with vague language, and the reason that courts do not enforce a vaguely drafted restrictive covenant, is that there is no objective standard by which to determine how a homeowner should act.  There must be some sort of guidance for homeowners to understand how to act and for the courts that may later have to determine whether a restriction can be enforced at all.  So, with our example of an association that wants to limit the type of animals that may be kept as pets, better language might be:  “no pets heavier than 75 pounds may be kept as pets” or “other than housecats, no pets shall be permitted to roam freely without a restraining device while on the property of the association or on the owner’s property” or “owners shall not permit their pets to disturb neighbors,” followed by a detailed explanation of what could qualify as “disturbing.”  With a little practice…well, probably a lot of practice, you’ll be well on your way to drafting enforceable restrictive covenants in no time.

Drafting good restrictions that homeowners can understand and live by, and that courts will ultimately enforce, requires careful thought and experience.  Please contact me if you have questions about your restrictive covenants or would like to discuss drafting or amending those you already have.

Author: David Wilson
Articles have been Reprinted with permission from Black, Slaughter, Black.

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