Restrictive covenant
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A real covenant is a legal obligation imposed in a deed by the seller upon the buyer of real estate to do or not to do something. Such restrictions frequently "run with the land" and are enforceable on subsequent buyers of the property. Examples might be to maintain a property in a reasonable state of repair, to preserve a sight-line for a neighboring property, not to run a business from a residence, or not to build on certain parts of the property.
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[edit] About
Some covenants are very simple and are meant only to protect a neighborhood from homeowners destroying trees or historic things or otherwise directly harming property values. Some go to an extreme and try to dictate absolutely everything a homeowner can do to the exterior, including the number of non-familial tenants one may have, or needing permission to re-paint the home unless it will be exactly the same color. Other extremes include dictating exactly when holiday decorations are allowed up, prohibiting the raising of a hood on any car (even to check it for safety), even prohibiting any car from being parked outside a garage at all. Many communities also forbid amateur radio or outdoor television antennas. However, there is a growing number of states that are enacting legislation that override covenants, conditions, and restrictions (CC&Rs), thus protecting amateur radio operators from adverse actions due to CC&Rs concerning antennas.[1]
[edit] History
Covenants were originally enforced in equity as servitudes for the benefit of the owners of land affected thereby. Previously the enforceability of covenants and servitudes depended upon compliance with strict requirements having to do with privity of estate between the owners of the affected parcels of land, but these requirements have diminished over time in favor of a general policy of enforcement of any covenants which are reasonable in terms and "touch or concern" the land affected.
[edit] Controversy
Some have accused homeowners associations of selective enforcement of these rules, making a case only when it is something (or someone) another person dislikes. Breaking a rule, even unintentionally, can bring fines or even a lien on the home. In extreme cases, homeowners' associations may file a lawsuit against a resident who violates the association bylaws.
Attempts have been made to have federal agencies preempt certain restrictive covenants. For example, the American Radio Relay League (ARRL) attempted unsuccessfully to have the FCC pre-empt restrictive covenants related to amateur radio towers. The FCC found that restrictive covenants are private contractual agreements, not state or local regulation, and not subject to the FCC pre-emption policy.[2]
A restrictive covenant differs from a zoning regulation in that its creation and enforcement is a matter of contract between the landowners whose properties are affected by it, rather than an exercise of the governmental police power. One example of a conflict was when a young African American boy passed an invisible line while swimming at the beach. He crossed into the "white" area of the water, and was later prosecuted.
[edit] Restrictive covenants in the history of segregation in the United States of America
In many cases before the 1960s, these covenants were used for segregationist purposes.[3] In the case of Shelley v. Kraemer, the United States Supreme Court ruled that it would be unconstitutional for the courts to enforce racially restrictive covenants, and such covenants no longer have any force.
[edit] See also
[edit] References
- ^ State Statutes Incorporating 'PRB-1 like' Legislation, American Radio Relay League (Accessed 9 January 2008)
- ^ Modification and Clarification of Policies and Procedures Governing Siting and Maintenance of Amateur Radio Antennas and Support Structures, and Amendment of Section 97.15 of the Commission’s Rules Governing the Amateur Radio Service, Memorandum Opinion and Order, 17 FCC Rcd 333 (2001), aff'g Order on Reconsideration, 15 FCC Rcd 22151 (WTB 2000), aff'g Order, 14 FCC Rcd 19413 (WTB 1999), recon. dismissed, 17 FCC Rcd 19408 (WTB PSPWD 2002) ("PRB-1 2001")
- ^ The Origins and Diffusion of Racial Restrictive Covenants Michael Jones-Correa Political Science Quarterly, Vol. 115, No. 4 (Winter, 2000-2001), pp. 541-568
