What happens if you ignore a restrictive covenant

Covenants are frequently the source of disputes between landowners because they compel one party to act to their detriment for another and are capable of being enforced by subsequent owners of land even though they were in no way involved in the original agreement.

For example, there might be a covenant that, if enforced, can compel you to pay for the upkeep of a path that runs across all of the surrounding properties. Essentially, a breach of covenant means that one or more parties have not acted in accordance with the covenant that is currently in place. This could be in relation to any number of things, such as access rights, building rights or even preventing a business being run from the property. The breach of covenant consequences could include having to remove any work done and returning the property or land to its previous condition.

There could also be a damages award to pay in any potential legal action. Remedies for a breach of restrictive covenant include a permanent injunction so that the breach cannot be continued or carried out again. If it goes to court, sometimes the court can choose to award damages rather than an injunction.

You may consider that you have the benefit of a covenant and want to stop a neighbour from doing something on their land such as building a large extension. On the other hand, you may want advice on whether your neighbour can stop you building an extension. The question of whether the benefit or the burden of a covenant has passed to owners not original party to the Deed is a complex legal issue and you will require specialist advice.

Covenants can have a variety of consequences. They can affect house prices by burdening property with added costs, infringe privacy by permitting others to enter your land and carry personal costs for homeowners. Similarly, a breach of covenant by your neighbour might cause you loss or inconvenience.

At Stephensons, we understand the significance of these issues. The mechanics of covenants can be extremely complex, but our experienced property law team can cut through the legal jargon and provide you with a solution without the red tape. We have answered some of the most common questions that we are asked about breach of covenant enforcement and related subjects. A breach of covenant in relation to property and land means that one party has broken the rules on what can and cannot be done on their land, which is to the detriment of the other party.

Restrictive covenants often include rules on changes to buildings or what the land can be used for. Breaching a covenant can have serious consequences for the party who has broken the rules and legal action may be taken against them. Breaching a restrictive covenant leaves you open to potential legal action from the other party, if they wish to enforce the covenant. If you are taken to court and the other party is successful, you might have to undo any work carried out and may face a fine or have to pay damages, as well as legal fees.

The owner of the land that benefits from the restrictive covenant is the one who can enforce a breach in restrictive covenant, as they potentially stand to lose out as a result of the breach. If they choose to, they are the party that can take legal action against you. On the other hand, if the zoning ordinance is more restrictive than the restrictive covenants, the zoning ordinance will control.

Possible architectural restrictions may include limitations on exterior paint colors, types of siding, fences, landscaping, and design of structures, to name a few. The scope of review and control of the architectural review committee depends on the power granted to the committee in the restrictive covenants and it varies from community to community. Generally, an architectural review committee considers whether the proposed construction or landscaping adheres to the architectural guidelines and whether it will be consistent with other structures in the community.

The restrictive covenants often grant the committee the authority to deny an application on purely aesthetic grounds. Although some architectural review committees do have a great deal of power and discretion, their actions must not be arbitrary or capricious.

An affirmative obligation does not directly restrict your use of your land, but obligates you, based solely on the fact that you own that particular tract of land, to take some action. The most common example of an affirmative obligation is the duty to pay assessments. Any owner of property that is governed by an owners association, whether residential or commercial, will almost always be obligated to pay assessments to the owners association to fund the common expenses of the association.

Those common expenses typically include maintenance of common elements in the development available for use by all owners and enforcement of the restrictive covenants. Your use of common elements has no bearing on your obligation to pay assessments to the owners association. You will be obligated to pay assessments regardless of whether or not you use the common elements and regardless of any complaints you may have against the owners association. The obligation to pay assessments has been challenged several times but, in a number of North Carolina decisions, the appellate courts have found that assessments are valid as long as there are some criteria by which the court can determine the amount of the assessment, its purpose, and its reasonableness in light of that purpose.

The restrictions and affirmative obligations included in a set of restrictive covenants may be enforced by i any individual owner or ii in a condominium or planned community, the owners association. Enforcement by individuals was common in older communities before the expansion of owners associations and still is fairly frequent even in communities with owners associations. However, most enforcement of restrictive covenants is now carried out by the appropriate owners association.

In a community with restrictive covenants, but no owners association, it is up to the individual owners alone to enforce the restrictive covenants against other property owners. This typically means that an owner must sue the offending owner in order to get an injunction preventing the offending owner from doing whatever it is that is violating, or threatens to violate, the covenants such as building a fence or shed if such structures are prohibited by the restrictive covenants or conducting a business at the property if the property is restricted to residential use only.

The offended owner may also sue for money damages, but there is often only nominal monetary damage or none at all. The North Carolina Condominium Act and the North Carolina Planned Community Act have empowered owners associations to use several mechanisms to enforce restrictive covenants. If an owner fails to pay assessments, the owners association may file a claim of lien against the owner's property subject to the restrictive covenants and may ultimately foreclose on the property to enforce the claim of lien.

These enforcement provisions are applicable to both commercial and residential communities governed by owners associations and it is important for purchasers of property in these communities to understand and appreciate these enforcement mechanisms. These agreements are a statutory instrument which can be enforced by the responsible authority usually the council , or through Victorian Civil and Administrative Tribunal VCAT.

Sometimes only one lot is burdened and one lot benefits see Overview for definition ; other times many lots are burdened and many lots benefit. A registered restrictive covenant is recorded on the title of the burdened land but is not recorded on the title of benefiting land. If the benefited land has been subdivided and re-subdivided, you might need to search the original plan of the subdivision and earlier titles to identify the benefited owners.

Even covenants that look similar might use slightly different words, resulting in different restrictions on the use or development of the land. Each covenant needs to be individually interpreted.

Registered restrictive covenants run with the land : when the burdened land is sold, the new owner s are bound by the covenant. The land owners who benefit from a restrictive covenant are responsible for enforcing it, not local councils.

For information about titles and details of covenants, contact the Land Information Centre. For general advice about how restrictive covenants work in the planning system email us at planning. If you want advice on a specific covenant, you should seek independent legal advice from a solicitor or property law professional experienced in these matters. Skip to content Skip to navigation. Legislation, regulations and fees.

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