Duties All Homeowners Should Know Regarding Covenants

When a developer of land buys a tract of land with the intent of developing it into a subdivision, this can create expressed or implied covenants, conditions, and restrictions.[1] These kinds of restrictive covenants are typically conveyed in the general scheme of development plan for the subdivision, and may be in some of the individual deeds to the lot, and are typically referred to as “reciprocal negative easements”.  While, an easement in the traditional sense is usually a right-of-way on neighboring land, these negative easements “restrain landowners from making otherwise lawful use of their property and help to maintain aesthetic uniformity with a subdivision.[2]

There reciprocal negative easements are enforceable by any grantee (a.k.a. the buyer of a parcel of land of the subdivision) as against another grantee.[3]  The theory behind the enforceability of negative easements is that covenants are for the mutual protection and benefit of all grantees in that subdivision.  The legal and contractual part of this theory is the consideration is based off of the diminution in the burdened lot is “partly or wholly offset by the enhancement in its value due to similar restrictions upon all the other lots in the same tract.”[4]  Take for example, if the developer of a subdivision required all grantees to have their houses painted blue, there would be a negative easement that no future buyer could paint their house pink.

In general there are four elements that have to be met in order to establish a reciprocal negative easement.  The four elements are: a common grantor; designation of the land or tract subject to the restrictions; general plan or scheme of restriction in existence for the designated land or tract; and the restrictions must run with the land.[5] Many of these elements are easy enough to meet, the intention to adopt a general plan may be indicated in several ways, and a general plan of development can be shown when there are substantially common restrictions that apply to lots that are of “like character” or “similarly situated.”[6]

If a homeowner wanted to enforce the reciprocal negative easement, they first would have to show that their property was intended to benefit from the imposed restriction.[7]  Typically, though if a homeowner is to bring an action to enforce the reciprocal negative easement it will most likely be an action in equity for injunctive relief against the alleged violation as opposed to an action for monetary damages.[8]

Thus, the home owners association of a subdivision is charged with the duty of maintaining any common property of the subdivision, such as a pool, tennis court, pond, etc. within the development, as well as ensuring that all the expressed or implied covenants are being met.  Further, the individual homeowners also have a duty of compiling with the reciprocal negative easements as well as any implied easements.  It’s important for all homeowners and homeowners associations to know of the corresponding covenants and easements that apply to their subdivision and related property.

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[1] Mark S. Dennison, Grantor’s Intent to Create Reciprocal Negative Easement by Common Development Scheme of Subdivision, 62 Am. Jur. Proof of Facts 3d1, (I)(A)§1 (2001).

[2] Id.

[3] Id. at (I)(B)§5.

[4] Id.

[5] Id.

[6] Id.

[7] Id. at (I)(B)§8.

[8] Id.