Are Property and Zoning Restrictive Covenants Enforceable in Maryland?

A restrictive covenant in property law is a limitation on how you can use your property.  It may seem unfair if you own the lot or the land that you can’t decide what to do with your own property – but restrictive covenants are said to “run with the land,” and anyone who buys or uses the property is bound to follow these rules.  Even if the covenant is generations old, it may still block you from using your land how you want to.  However, whether these restrictions are enforceable and how they can be enforced might dictate whether you can violate a restrictive covenant.  Baltimore real estate dispute attorney William S. Heyman explains.

How is a Restrictive Covenant Formed?

A restrictive covenant is usually contained in the deed to a piece of property.  This means that it is a built-in part of the property rights, and it passes down from owner to owner.  One of the most important doctrines in property law is that you cannot give legal title to someone else that you do not have yourself.  This is an essential rule to follow in land title disputes.  Since the deed itself does not contain the right to violate the covenant, you cannot pass down the right to violate the covenant, so each owner after you and before you is subjected to that restriction, and it “runs with the land.”

Typically, restrictive covenants are put into property when it is divided into multiple pieces.  In a more historic example, someone might take a large estate and give sections of it to farmers or others to develop as they see fit.  That landowner might put a restrictive covenant in his deed to prevent others from getting rid of an access road or building too high so as to restrict his view.  In modern times, restrictive covenants are usually used in subdivisions and neighborhoods so that when the developer gives out deeds to the new pieces of property, those deeds contain restrictions against fences, non-uniform structures, above ground pools, and other things that neighbors might see as “unsightly” or bothersome.

In some ways, restrictive covenants are similar to zoning laws in that they tell owners what they can and cannot do with their property.  The main difference is that zoning laws are made by the local government and restrictive covenants are contained in the deed to the property.

Who Enforces Restrictive Covenants?

If you own the property, then who has the right to enforce a restrictive covenant against you?  In the traditional example where a piece of property was carved out of a preexisting property, the owner of the rest of the property would usually be the one to enforce a restrictive covenant.  That means that if you were given a small cottage on a larger estate, the owner of the larger estate would have the power to take you to court and enforce the covenant if you tried to violate it.  Today, it is more likely that the original piece of property was subdivided and there is no one left who owns the greater share, so who can enforce the covenant?

It often seems petty, but the owners of the other pieces of property carved into a subdivision might be the ones to enforce a restrictive covenant.  This would mean that, in the example of a housing development or subdivision, it would be your neighbors taking you to court.  This could happen in a residential neighborhood if you tried to violate a restrictive covenant by building a commercial building or constructing a structure or fixture that violates the covenant’s restrictions.  In a piece of commercial real estate, the other businesses could try to enforce a covenant if you tried to turn the commercial property into residential property or build a non-conforming structure.

Unlike zoning laws, restrictive covenants are enforced by individuals and businesses, not the government.  This is because they are part of a contract with other property holders, not laws handed down by the local government.

Can I Violate a Restrictive Covenant?

In most cases, violating a restrictive covenant would be similar to breach of contract.  However, not every restrictive covenant is valid in the first place, and you can certainly violate invalid restrictive covenants.  In any case, you might be taken to court if someone thinks the covenant is valid, so you should always speak with a lawyer about difficult property decisions.

Restrictive covenants are typically invalid if they do not “touch and concern the land” – which usually happens when they are personal in nature.  For instance, if the restrictive covenant said that “Dave cannot use this land for farming,” it would not “run with the land” and could not be enforced against anyone who bought the property after Dave.  Similarly, the covenant usually needs to benefit the person enforcing it, or else it is invalid.  The previous owner cannot put a restriction on the land arbitrarily, and you may be able to beat these restrictions in court.

Zoning restrictions have several ways around them that restrictive covenants do not.  You may be “grandfathered in” to violating a zoning ordinance if your property already violated the zoning rule before the ordinance was passed.  Similarly, you may be able to apply for a variance or exception so that you can legally violate the zoning rule.  A property and contract lawyer can help you with this.

Call Our Real Estate Attorney for Help with Your Case

Strict zoning restrictions and restrictive covenants on property can be a thorn in the side for commercial real estate owners and developers as well as residential developers and other builders.  If you need help fighting a restrictive covenant or zoning ordinance in Baltimore or the surrounding areas, contact the Heyman Law Firm today.  Our commercial litigation lawyers may be able to help you with your case and get your property rights settled so that you can continue to build without interference.  To schedule a consultation on your case, contact us today at (410) 305-9287.