Restrictive covenant
A restrictive covenant is a recorded limitation on how land may be used. It runs with the property, binding every subsequent owner.
What they typically cover#
Building setbacks and minimum sizes. Permitted structures — whether a detached garage, a shed or an accessory dwelling may be built. Exterior materials and colours. Fencing. Business or commercial use. Vehicle and boat storage. Subdivision of lots.
They originate with a developer platting a subdivision and are imposed on every lot, so that each owner's investment is protected from what the others might do.
Covenants are not zoning#
The distinction matters and is frequently confused.
Zoning is public regulation, enforced by the city, and it can be varied through a variance or conditional use permit.
Covenants are private, enforced by the parties entitled to benefit — other lot owners, or a homeowners association.
They operate independently. A city may permit something the covenants prohibit, and the covenant still binds. Getting a permit is not permission from the neighbours.
That combination catches buyers who checked the zoning and assumed they were finished.
They bind whether or not you knew#
Recorded covenants run with the land. A buyer who never read the title commitment is bound exactly as one who did.
They appear as exceptions on the commitment, with a recording reference. The commitment gives the reference; the recorded document gives the content.
Pulling that document is the only way to know what the restrictions actually say, and it is worth doing on any property where the buyer intends to build, extend or operate a business.
Removing them#
Difficult, usually.
Some carry expiry terms or automatic renewal provisions with a mechanism for termination by a stated majority of owners.
Some can be released by agreement of everyone entitled to enforce — which on a subdivision means every lot owner, and is impractical.
Courts will occasionally find a covenant abandoned where it has been ignored so widely and for so long that enforcement would be inequitable. That is litigation, and it turns on facts.
Discriminatory covenants#
Many older Minnesota plats, particularly in the Twin Cities, carry racially restrictive language from the first half of the twentieth century.
Those covenants are unenforceable and unlawful. They have no legal effect whatever, and no title examiner treats them as an encumbrance.
They remain in the recorded documents because the record is historical. Minnesota provides a process by which an owner can have such language formally discharged from the record for their property, and a number of owners have done so.