Restrictive Covenant

What Is a Restrictive Covenant?

A restrictive covenant is a legally binding limitation on how a property can be used. Unlike zoning, which is a government regulation, restrictive covenants are private agreements between property owners. They are typically created by the developer when a subdivision is platted and are recorded in the public records as part of the declaration of covenants, conditions, and restrictions (CC&Rs).

Restrictive covenants "run with the land" under Florida law, meaning they bind every future owner of the property, not just the person who originally agreed to them.

Florida Legal Framework

Restrictive covenants in Florida are enforced as contracts. Chapter 720, Florida Statutes governs enforcement in HOA communities. Key principles include:

• Strict construction — Florida courts interpret ambiguous covenants in favor of the property owner's right to free use of their land.
• Reasonable enforcement — Covenants must be enforced uniformly. Selective enforcement can be a defense in covenant violation disputes.
• Changed circumstances — A covenant may become unenforceable if the surrounding area has changed so substantially that enforcement no longer serves its original purpose.
• MRTA impact — Under the Marketable Record Title Act (Chapter 712), covenants that predate the root of title may be extinguished unless preserved by a recorded notice. Developer covenants filed with a subdivision plat generally survive MRTA.

Common Restrictive Covenants in Florida

• Use restrictions — Limiting property to residential use only, or prohibiting specific activities like short-term rentals or home businesses.
• Architectural standards — Requirements for building materials, roof types, exterior colors, fence heights, and minimum square footage.
• Occupancy restrictions — Limits on the number of occupants or prohibition of non-family members.
• Animal restrictions — Limits on types, number, or size of pets.
• Parking restrictions — Prohibitions on commercial vehicles, boats, or RVs.

Impact on Real Estate Transactions

Restrictive covenants are identified during the title search and listed as exceptions on the title insurance policy. Buyers should review all covenants before closing to ensure they can use the property as intended.

Related Terms

• Deed Restriction — Often used interchangeably with restrictive covenant
• HOA — The entity that typically enforces restrictive covenants
• Encumbrance — Covenants are non-financial encumbrances
• Covenant — The general legal concept

Barnes Walker Covenant Services

Barnes Walker's attorneys review, draft, and litigate restrictive covenant matters for communities and individual property owners throughout Southwest Florida. Request a legal inquiry for assistance.

Reviewed by the attorneys at Barnes Walker, Goethe, Shea & Robinson, PLLC