Know your restrictive covenants

As a homeowner you are the master of your own universe, but that world may be controlled by the terms in your deed. Most housing developments and even undeveloped land have limitations on what can be done or kept on the premises called restrictive covenants.

They are used by developers to set a standard for the look and character of the houses and neighborhood with the intent of preserving land values. Restrictive covenants are interpreted as contracts, but any vague or unclear language will be resolved in favor of the free enjoyment of the property.

Common and uncommon restrictions

Typical restrictive covenants in a housing development can control the size and style of houses, setback requirements, type of fencing and even color schemes. These are things that prospective homeowners agree to abide by when they choose to purchase a home in that development. Other restrictions may not be so obvious, and may hamper your plans for your new house.

A widely used restrictive covenant prohibits commercial use of the property, sometimes even home businesses such as giving piano lessons, short-term rentals or caring for children. Storage of vehicles such as RVs or boats on the property may be banned as aesthetically unpleasing. The type and number of pets and whether animal breeding is allowed can be subject to a restrictive covenant, as can the type of trees and shrubs you can plant.

Changed conditions of the neighborhood

When a violation of a restrictive covenant is challenged, the violator may claim changed conditions in the development or neighborhood. This can include previous violations that were not challenged or an increase in commercial growth. However, to extinguish a covenant under New Mexico law the changes must be so radical and significant in degree that they destroy the original purpose of the restriction.

In the case of Myers v. Armstrong, a homeowner lived in a development with a covenant that restricted all lots to residential use and allowed dogs only for household and noncommercial purposes. Nevertheless, she started a dog training business on her property and expanded it to dog grooming and boarding. She then constructed a 3,000 square foot metal building on the property to use in her businesses.

She defended her violation of the covenant by saying there had been other businesses in the development, and those violations extinguished the covenant. The court found that there had not been such radical changes in the development to extinguish the covenant, and she was forced to remove or alter the metal building and was enjoined from operating her dog businesses.

Trees blocking the view

The plaintiff in Lawton v. Schwartz sued to enforce a restrictive covenant that prohibited the subdivision's trees from interfering with her view of the Jemez Mountains. Her home was built to take advantage of the restriction with western-facing main rooms, and when cottonwood trees got too tall she requested that the subdivision association take action to enforce the view restriction.

The association took no action, and in fact the members voted to delete the view restriction after the homeowner's request for enforcement was denied. The restrictions and the provisions for amendment were ruled ambiguous and the case was sent back for clarification, including the voting procedures.

Consult an attorney

If you have questions about confusing deed language or restrictive covenants on your property or property you wish to purchase, a real estate attorney can provide answers and advise you on your options. Seeking counsel for clarifications on a deed or real estate contract before the home closing will ease your mind about the transaction.

  • New Mexico Board of Legal Specialization
  • NMLTA
  • Member of Community Associations Institute