Covenant vs Deed Restriction

I'm having some difficulty finding a definition for Deed Restriction. Can someone help me with the difference between covenant and deed restriction.

Are deed restrictions physically located/defined on your property deed and/or refer to CCRs? If not are CCRs binding on the land?

Thanks.
Tracy

Um what? I'm sorry but how can I determine "when the property falls within its jurisdiction"?

I was doing just fine CCRs. I guess I just stepped out of my league.:-o

Tracy

Tracy,
My understanding is that the two are basically the same. Deed restrictions and restrictive covenants are recorded along with the deed. I do not remember now how my deed is written so I can't say if they are actually referenced by the deed. The Deed restrictions and restrictive covenants are binding on the land, but may have time limits or methods to be cancelled.
Kevin in Florida

I think the by-laws "define" the association.

The Deed Restrictions are just a shorthand way of saying "Deed Conditions, Covenants, and Restrictions," and are tied to the title and apply to restrictions regarding the piece of real-property and what you can and can't do on it.

The "Association" is simply the aggregate of all the Deed Owners within the defined area that the Deed restrictions apply to and the "Board" is the group that generally handles the day-to-day activities of the "Association," including enforcing the "Deed Restrictions" (or otherwise known as CC&Rs). However, "technically," since all owners in that area are members of the association, all owners individually can "enforce" deed restrictions, but it's not a very efficient or effective method for doing so. It's best to the board do that so that it is centralized and, theoretically, consistent and non-selective enforcement.

The Restrictions, Covenants, and Conditions remain intact to the property regardless of who owns the title. They are "covenants" with the title owner that he/she will abide by the "conditions" and "restrictions" that "run with the land" (deed).

at least, that's my interpretation.

"The Restrictions, Covenants, and Conditions remain intact to the property regardless of who owns the title. They are "covenants" with the title owner that he/she will abide by the "conditions" and "restrictions" that "run with the land" (deed). "

Interesting. My deed/title does not call out the CCRs. My title insurance says that I'll pay dues for upkeep of the common areas. The county I live in maintains our roads, picks up trash and recyclables and supplies water etc. either directly to the homeowner or through county/state taxes.

The CCR defines the Assoc. is reponsible for up keep of common areas and enforcement of CCR in order to protect property value. (There are actually very few 'restrictions' with the prevalent theme being exterior and trash maintenance).

The CCRs does define all of the lots in association (the jurisdiction) but are they "binding" on land? Which document takes precedent CCR or deed? What if at some point the CCR actually changes?

I'm probably 'over thinking' this but really curious at this point. Thanks again.

Tracy

Michele and all,

I think you answered my question as well as you could or at least as well as I understood it to ask it. (does that make sense? )

By "call out the" [CCR] I mean that my title/deed does not specifically "cite" the CCRs (or that my property must be in compliance with the CCR at the time of title transfer, what ever version of the CCR exists).

So, what I'm taking away from here is that CCRs are not binding on the "land" but rather they are binding on the "owner".

Thanks.
Tracy

Jill,

If I'm understanding this correctly, it's going to depend which came first.

If the CC&Rs were attached to the initial parcel. The Deed of Division would have then subdivided that parcel and the initial CC&Rs would be attached to each subdivision.

If the land was first subdivided and then the CC&Rs attached, it would be possible for a subdivided section to have been left off the deed restrictions.

I'm sorry, I've got to me more careful with my proofreading.

I would expect that if there is a conflict between deed restrictions and the deed/plat that the plat (deed of division) would be the controlling document.


Providing that their is not a conflict between the two, then everything within both documents would need to be complied with (this is similar to an Association having to comply with both the CC&Rs and the Bylaws).

If you care to share, what was the conflict and how was it fixed?

All

I am not nor do I play lawyer, but:

A deed restriction (also known as a restrictive covenant), is a provision in a deed that limits what can be built on a property, or how that property can be used. Deed restrictions "run with the land," meaning they apply to all future owners of the property, not just the person who owns it when the restriction is adopted [source: McKenzie]. The origins of these restrictions can vary. Maybe the property is located in a neighborhood with an active homeowner's association that created the restrictions, or in a historic urban neighborhood where restrictions have been in place for years, or in a rural area where two neighboring farmers made a deal 100 years ago that is still in force.

Deed restriction can be simple and bind one to no one else, just abide by the restriction.

Deed restriction can be complex, lengthy, and bind one to many others such as to an HOA of several thousand fellow owners.

Quite often the appeal/reason of I disagree, I will not do whatever, I am being an Ahole, etc. is that I did not "agree" to such. Well the sad truth is one probably did agree even if one does not remember doing such.

Many times in our haste to get the deal done (I want my new place now), we sign things without reading and when we say I did not know, someone can produce a piece of paper showing we agreed to such.

Fool me once, shame on you. Fool me twice, shame on me.

Jill

Drawn up documents (Covenants, Bylaws, Rules and Regulations, etc.) cannot supercede government laws.

One cannot draw up a deed restriction that says casino gambling is legal in our little association in Podunk, USA if the laws of Podunk USA say gambling s not allowed in Podunk USA.

A local law might say no fence in the county can be more then 8 feet tall but a deed restriction can be tougher and say no fence in our association can be higher then 6 feet tall. The deed restriction will win out.

Many old Covenants (some as late as the 1990's) said one could not sell their land to a Negro. Some old deed restrictions might well still say so but one could sign for such and know it could not (nor should) be enforced no matter what they signed for.

Many BOD's will try and circumvent all kinds of things (laws, Covenants, Bylaws, Rules and Regulations, etc.) with their own whatevers. There is a hierarchy of documents. A lower one cannot override a higher one no matter how much they think/believe they can.

Some will say well they cannot pass a whatever I do not agrre with. Wrong boyo, they usually can find a way to do so if they are smart enough. There are many ways to skin a cat.

Some win every battle they ever fought but lose the war and do not understand how they lost the war.

Ask JM..LOL

Jill,

Obviously, there can be conflicts. When there is a conflict, the higher precedent document/law would control (or be the one that must be complied with). As I pointed out earlier, in the case of a subdivided PLAT or CC&Rs it would likely depend on which was established first.


If the Plat was established first, then the PLAT would control.
If the CC&Rs were established first, then some other issues may come into play.

If the original CC&Rs specified only specific homeowners, and the CC&Rs were established first, then the CC&Rs would control (as the PLAT would be in conflict with the CC&Rs).

If the CC&Rs were amended to say only specific homeowners, since the amendment came after the PLAT, then the Plat would control (as the amendment is in conflict with the PLAT and is thereby nullified).


I think that this would depend on a few things:

1) What language is used in the easement (i.e. specifying one use and prohibiting others or just specifying an easement for one use but silent on other uses for the easement).

2) Is the expansion of use on the easement conflicting or prohibiting the initial use of the easement?

3) Is the easement on Private Property or Common Area (which is under control of the Association).

4) Is the expansion part of the original CC&Rs prior to property being sold to others or an Amendment after the land is sold (as there would likely be issues if the easement was on private property and not agreed to by the owner of that property).

Easements are touchy things as it establishes a right for one or more entities (individuals, corporations, governments) to use the property owned by another. Since it's a right established by laws and legal contracts (deed restrictions) then the language used in the contract becomes a crucial element in determining what is or isn't allowed. Additonaly if there are more than one contract (one on the initial land and another on the subdivided land) or if there are applicable laws then it will also depend on the language used in those documents (as some laws which would typically have precedence defer to a lower document and only take control if the lower document is silent). If contracts were amended.

Therefore, asking what if questions really won't provide a good answer as it is going to require someone who is familiar with the real estate laws of the State, have access to the documents in question and have a historical search done of the property in question to see if there were any unknown agreements attached to the land in the past that are still applicable and would have precedence.

Sorry it's not a clear answer. Hope it helps,

Tim