This article is excerpted from Living with Deed Restrictions by the Texas A&M Real Estate Center, which was last revised in September 2013.
Deed restrictions may appear in two forms. One is called a personal covenant, the other a real covenant. Personal covenants are binding only between the present grantor and grantee. After that, subsequent owners are unaffected. Real covenants directly affect the use and enjoyment of the property. They "run with the land" or "touch and concern” the property. This means the covenant and the property are inseparable once the covenant is recorded. All subsequent transferees will be subject to the covenant whether the restrictions are explicitly referred to in the conveying instrument or not. Consequently, not only are the original grantor and grantee entitled to the benefits and liable for their obligations but so are the successive owners of the property.
Deed restrictions have become a popular tool for developers to preserve and protect the value of land, thereby making the property more attractive to buyers. Developers employ the restrictive covenants (or subdivision restrictions) to regulate the size and location of structures; quality, cost and design of improvements; setback and yard requirements; architectural styles and other uses of the property. Also the activity of the owners may be regulated. For example, certain commercial enterprises may be prohibited in exclusively residential areas.
Not all restrictive covenants are enforceable. The grantor has the right to impose restriction and have them enforced as long as they are:
(1) reasonable in nature,
(2) not immoral or illegal
(3) not contrary to public policy.
Restrictive covenants forbidding the sale or transfer of property to, or occupancy by, persons
of a certain race or religious faith are unenforceable. If the restrictive covenant is ambiguous or not clearly drafted, all doubts will be resolved in favor of the free use of the property and against the enforceability of the restriction. Deed restrictions have become a popular tool for developers to preserve and protect the value of land, thereby making the property more attractive to buyers. covenants are binding only between the present grantor and grantee.
In many areas, deed restrictions and zoning ordinances are imposed on the same geographical area. In case of conflict, the more restrictive of the two prevails. For instance, a city zoning property as commercial cannot override the subdeveloper’s restrictions that make the subdivision exclusively residential. After investigating the deed restrictions on their property, the Palmers decided to proceed with the renovations. Other homeowners in the development had done so without opposition. After the work was completed, several owners within the subdivision filed a lawsuit against the Palmers for violating the restrictive covenant.
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