Covenants Not Listed on My Deed

Visitor Asks: I am trying to understand how CC & R's that were provided to me when I purchased my home can be enforced if they are not listed on my Deed?

Editors Reply: Many times, CC & R's are not shown on the deed itself.

CC&R's stands for Covenants Conditions and Restrictions, by the way. The term really has the same meaning as the simpler "covenants" and is indistinguishable from deed restrictions for most people.

Because newer planned developments, condominiums, and subdivisions owning common ground will almost always have CC&R's, their treatment by real estate professionals has become somewhat casual.

Sometimes the unsophisticated real estate agent does not share the CC&Rs with the client, but a smart buyer will ask to see them before even making an offer. You wouldn't skip walking through one room of the house you love just because you assume it will look fine, would you?

Often the title company where a real estate closing will occur does not even have the CC&R's until the closing day, so amid all the paperwork, few buyers pay any attention to the CC&R's. This comes up much later when the buyer finds out that he or she or they cannot use the property exactly as intended.

So our visitor who asked the question admits receiving the CC&Rs, but wants to know how they can be enforced since they were not on the deed.

The answer is that any property owner in the development has legal standing to sue to enforce the CC&R's. (Legal standing means that a court will see that person or entity as an appropriate party to initiate the legal action.) If the development has an HOA, they can sue to enforce the covenants, or their bylaws may allow assessment of fines and penalties to force compliance.

The real question for a homeowner, of course, is whether someone else is likely to sue, and if that happens, how severe the consequences would be.

If you violate the covenant that says only an American flag can be displayed and no other flags or banners, and you put out a flag celebrating the arrival of spring, would your neighborhood meddler sue? Probably not. But if you put up an accessory structure (a term for outbuildings such as garages, sheds, and much more) that everyone agreed was hideous, maybe someone or the HOA would sue you.

Keep in mind that covenants of any type, or the CC&Rs, are not enforced by any level of government. So this means that enforcement is private and through the court system, unless your HOA has the power to fine, remove items and impose liens, and so forth.

Whether the covenants were included on the actual deed form is irrelevant in every state of which we are aware, although we caution that we are not attorneys and do not have relevant planning experience in every single U.S. state. If you want a certain answer for whatever prompted your question, you will need to consult an attorney licensed in your state. But without cost, your local or state bar association may be able to answer the simple question of whether covenants must be included in a deed to be valid.

But as a general rule, whether or not the covenants were enumerated in the deed does not impact their validity. Buyers, read those restrictions, even if you are sitting in the closing asking for permission to read 50 or 100 pages while everyone waits and glares at you! A careful sales agent would have provided them to you in advance.

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