Business Law 101 / RESTRICTIVE COVENANTS

By Albert L. Kelley, Esq.

Land use is covered by numerous issues, with the top three being zoning, environmental concerns, and restrictive covenants. I want to start with the last of these, restrictive covenants, as it is strictly tied to the transfer of property.

A restrictive covenant is a limitation that actually appears on the deed itself. Generally, a restrictive covenant begins with a real estate developer planning out a multi-unit project. In the planning phases, in order for the development to preserve the ideals of the developer, the developer sets out certain restrictions on the various properties. As the units are built and sold, the deeds are drafted to include these restrictions. These restrictions that appear in the deed are called restrictive covenants.

A restrictive covenant may include many issues. It may limit what the property owner may use the land for (As an example, it may state that the property is only to be used for residential purposes). It may state that none of the buildings may be more than one story in height. It may state that all yards must be fenced. It may state that the owners shall not allow their grass to grow in excess of two inches. These are just some examples of what restrictive covenants can include.

The covenants do not have to be actually stated in the deed; the deed may simply state that it is subject to certain restrictions that are listed in another document. Some restrictions may be implied through a common scheme in a building subdivision. Restrictions may be stated in the plat as designed by the developer. These restrictions in the plat will then remain inactive until the developer sells the individual parcels at which time the restrictions shall take effect.

One of the general purposes of restrictive covenants is to preserve the property in such a way as to stabilize the values of all properties in the project. If one homeowner was able to change the design or use of his property, it may affect the values of neighboring properties in a negative manner. Some property owners see this as an imposition on their rights as property owners, however, they agreed to the covenants when they purchased the property.

Restrictive covenants are contracts; they shall be interpreted like contracts and enforced like contracts. Where the wording is clear, the Court will uphold the exact wording of the covenant, so long as it does not run counter to public policy. Where the wording is vague, the Court will look to the intent of the parties to determine the meaning of the covenant. The Courts will generally read restrictive covenants very strictly as the law favors free use of property. The Court will generally consider the covenant as narrowly as possible to give the property owner the greatest latitude of use with his property. If the covenant violates a state or federal law, the covenant will become void and unenforceable.

Covenants are generally enforced with injunctive actions. If a property owner in a subdivision is using his property in a manner contrary to the restrictive covenants, the other property owners in that development project have the ability to go to Court and get an order demanding the offending property owner cease the improper use of his property.

Restrictive covenants can disappear if they are not enforced. When the owners in a subdivision fail to seek enforcement of a covenant, it may be deemed that the covenant has been waived and is no longer enforceable.

Al Kelley is a Florida business law attorney located in Key West and previously taught business law, personnel law and labor law at St. Leo University. He is also the author of “Basics of Business Law” and “Basics of Florida’s Small Claims Court” (Absolutely Amazing e-Books). This article is being offered as a public service and is not intended to provide specific legal advice. If you have any questions about legal issues, you should confer with a licensed Florida attorney.

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