When purchasing a property you will want to know whether there are any covenants attached to your property. Covenants are typically referred to as ‘restrictive covenants.’ A restrictive covenant is normally contained in a deed conveying land. Restrictive covenants are essentially the things you are not permitted to do on, to, over or under land or in relation to an estate or interest in land.
When a Developer subdivides a large parcel of land for residential subdivision, the Developer usually wants to ensure the character of the subdivision is preserved. This can be achieved by placing common restrictions on the use of the lots by subsequent homeowners. Some common examples of restrictive covenants are as follows:
- no clothes line shall be placed on the property;
- no signs or billboards shall be placed on the property; or
- no trailer of any kind shall be parked or placed on the said lands.
There are two important things to understand about restrictive covenants. First, restrictive covenants ‘run with the land.’ This means that once restrictive covenants are put in place they attach to the property and all subsequent property owners are bound by the original restrictive covenants. Thus when you purchase a property with restrictive covenants, you are agreeing to be bound by those covenants. Therefore, you will want to review these to ensure that they will not unreasonably restrict your use of the property. Generally when you enter into a standard Agreement of Purchase and Sale, you can not object to the existence of restrictive covenants before you buy unless they “materially affect your enjoyment of the property”. Your lawyer can advise you on whether or not a restrictive covenant “materially affects your enjoyment of the property”.
The second important thing is that a restrictive covenant must be negative in substance. You will note from the examples listed above these covenants all place a negative restriction on what you can do with the property. A restrictive covenant directing you to do something such as, “you must place a clothesline on the property” is not a valid restrictive covenant. The difference is a restrictive covenant cannot be positive in substance.
Since you are bound to follow restrictive covenants, make sure when you are purchasing a property that you ask your real estate agent or your lawyer about any restrictive covenants that apply to the property you are purchasing.