Q. Should we be concerned about covenants, those ancient doctrines of real estate law?
A: Definitely yes.
I fully agree that real estate law is founded on ancient principles. But it still is the law, and you must become familiar with all of the restrictions that affect your right to use your property as you see fit.
Among these restrictions are easements and covenants. Simply defined, a covenant is a promise to refrain from certain acts. It would take many pages of this newspaper to spell out in detail the full significance of covenants, but you should at least be aware that your property may be affected by them. An easement is a right or privilege a person may have in another's property.
In some cases, these restrictions are beneficial to you. For example, in most subdivisions the utility companies have easements giving them the right to enter your property to make necessary repairs to the telephone, gas or electric systems.
Your builder might have introduced what are termed setback restrictions so that neither you nor your neighbor would be able to build within a set number of feet from each other. Clearly, these restrictions aid in the peaceful enjoyment of your property.
There may be other restrictions that you are not willing to endure. For example, in many subdivisions, the builder may retain the right to determine the color and style of your property, even if you repair it. Thus, you may be required to obtain the prior approval of the builder or an architectural control committee if you want to paint your house a particular color, or even build a fence.
This can work two ways. While it prohibits you from taking certain steps, it also protects you against possible excesses by your neighbor.
Some of these restrictions, although clearly valid and enforceable, have lost their effectiveness merely by passage of time. For example, in many parts of the District of Columbia, homeowners are prohibited from using their property for the sale of sheep, horses and pigs. Fortunately there is seldom need to enforce these covenants.
But in parts of Maryland, for example, there are restrictions prohibiting the rental of single-family property to more than one person if the persons are not related. And while there may be no valid justification for these covenants, nevertheless they are enforceable by the community association.
Additionally, you may find you are unable to use your property for commercial purposes. Thus, you should familiarize yourself -- before the settlement -- with the kinds of restrictions which exist on your property. It may very well be that you can live with them, but isn't it a good idea to determine this before you close on your house?
How can anyone buy a house without knowing -- in advance -- about recorded restrictions on the peaceful use of the property? I recommend the following addition to most real estate contracts:
"This contract is contingent upon review by the purchaser of all such covenants, easements and other restrictions or record, and the purchaser has the right to cancel the contract if not satisfied."