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What Are Covenants, Conditions And Restrictions?

Originally Posted: August 24, 2010

John A. Viteritti

  |   1 Comment · Print Article

Restrictions may be included in the deed and are binding on all current and future owners of the property. (greenlanemanor.org)

Southampton - Why are covenants, conditions, and restrictions, commonly known as CC&Rs?

Property owners may restrict the use to which the property may be put, as long as those restrictions do not violate law or government regulations.

The restrictions may be included in the deed and are binding on all current and future owners of the property. In other words, as with all items included in a deed, they attach to the property, regardless of who the owners are at any given point in time.

Property owners may restrict the use to which the property may be put. (firsttimebuyers.wordpress.com)

A person who owns property and has the property sub-divided in accordance with laws governing subdivision, may restrict the use of the land through a restrictive covenant in the deed or by a separate recorded declaration filed with the County Clerk's Office in the County where the property is located as is any recorded deed.

These restrictions may involve structures, such as, "all garages must be attached to the main building rather than separate." "The minimum set back requirement is 30 feet." "No fences may be constructed on the property." "No structure of fewer than 1,800 square feet or greater than 2,200 square feet may be constructed on the property." In short, the covenants and restrictions must be reasonable and a benefit to all of the property owners in the sub-division without constituting a violation of law or government regulations.

If a deed restriction and a zoning provision conflict, the more restrictive provision applies. Take the example of the garage. If the zoning permits detached garages, the restrictive covenant could prohibit them. But if the zoning required attached garages, the owner could not permit detached garages be constructed on the property. The more restrictive prevails. What may also be the case is that if the zoning permits the construction of a detached garage and the zoning does not, an owner who applies for a permit to the local buildings department may receive the permit as well as a certificate of occupancy after its completion, even if this were in violation of covenants and restrictions. Under these circumstances, the proper recourse against those who violate covenants and restrictions is through the County Court in the County where the property is located. In such situations the courts may issue an injunction ordering the violator to not erect the structure or order that it be torn down. There are time periods in which the affected property owners must take action, (statutes of limitations), or lose the right to take action. Undue delays by affected property owners may also result in the loss of the right to take action. (The fancy common law term for this is laches: an undue delay in asserting a right which may result in the loss of the right!

Often, covenants and restrictions are more cosmetic rather than structural in nature. Common examples might be, "No recreational vehicles may be parked in the driveway." "No cloths lines." "Only fences of wood may be constructed." It is not uncommon for some Homeowners' Associations to have architectural committees that must review and approve any additions or alterations to the property in order to assure that they comply with the covenants and restrictions in effect.

An example of what may not be permitted in restrictive covenants would be the prohibition of the sale, transfer, or rental of the property to those protected by federal, state, and local fair housing laws. In the not-too-distant past this was a common practice, and, in fact, may be included in the covenants and restrictions that were imposed before the laws took effect, but these covenants and restrictions are unenforceable today.

What would also not be permitted is prohibiting the transfer or mortgaging of the property by a future owner of the property. Such prohibitions would constitute violations of rights inherent in ownership: the "bundle of legal rights."

I would always recommend to real estate agents that they be cognizant of the existence of CC&Rs in the communities where they do business, and call their existence to all interested parties in the transaction.

John is a St. John's University graduate, licensed Real Estate broker, lecturer, teaches real estate license classes at LIU, NYU, and Cook Maran Real Estate School, and is a well-respected consultant to the real estate industry. www.johnaviteritti.com

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Guest (Joe DeMarco) from Jay,New York 12941 says::
We are currently in litagation over a lot owner who has volated the C&R's of our HOA. Our town officers say that they must issue a building permit although we have asked them not to. This lot owner has gone ahead and is perparing his lot for a building that violates our C&R's despite our pleas for him to stop. Can a Town in New York State,by law,not issue a building permit if the building violates the HOA C&R's ?? Sincerely, Joe DeMarco 621 AuSable Drive, Jay,NY 12941
Jul 7, 2011 4:24 pm


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