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What are restrictive covenants and easements & how do they impact property rights?

Real Estates Law

Easements and some types of restrictive covenants have to do with property. If you’re a property owner, it’s important to understand your rights and restrictions, and how your property is affected by restrictive covenants and easements. 

This post is a general overview of what restrictive covenants and easements are, and how they can affect your property. 

What is a restrictive covenant?

A restrictive covenant is a legally binding agreement or contract that limits the use of your property. The purpose of a restrictive covenant is typically to control or regulate the community, or to protect the interests of your neighbours. Restrictive covenants are often used by HOAs (homeowners’ associations).

Restrictive covenants are separate from municipal laws and are tied to the land, so the property’s restrictive covenants bind any future owner of the property. A title search or property survey will show any restrictive covenants attached to the property. 

4 Common Types of Restrictive Covenants

There are four main types of restrictive covenants related to property.

  1. Use: Restrictions on the use of the property, such as a prohibition on running a business from your house
  2. Lease: Restrictions on renting or leasing all or part of the property
  3. Maintenance: Requirements for maintaining the property to conform to community standards
  4. Architectural: Restrictions or requirements to maintain uniformity of property and buildings in the community, such as the colour of roofs, type and height of fencing, or general design features including the size of the buildings

Restrictive Covenant Examples

Here are a few examples of regulations a restrictive covenant might cover:

  • Installing a clothesline on your property
  • Raising livestock or keeping certain types of pets on your property
  • Parking boats or ATVs in your driveway
  • Regulations about size, height, and placement of buildings on your property
  • Regulations about the colour of buildings and roofs on your property
  • Limitations on business or commercial use of your property 
  • Maintenance requirements such as trimming trees or mending broken fences

How do restrictive covenants impact property rights?

Restrictive covenants provide benefits such as upholding the property value and maintaining community standards. They can also minimize disputes among members of the community. 

However, restrictive covenants can cause difficulties, too. They limit a property owner’s control over their own property, and failure to comply with a restrictive covenant leaves one vulnerable to lawsuits and fines. 

A legally-binding restrictive covenant is sometimes outdated or no longer useful, but removing a restrictive covenant often requires obtaining a court order. Alternatively, if all owners of the affected properties agree in writing, the restrictive covenant can be removed. 

What is an easement?

An easement, sometimes referred to as a right-of-way, gives a third party the legal right to use your property for a specific purpose. Unlike a lease or rental agreement, an easement does not involve payment for the use of the property. 

Easements can be created informally between two parties in agreement, as in the case of neighbours who simply agree during a verbal conversation. Other methods for creating easements include by will or deed, by prescription (which is when a right is established based on unchallenged use over an extended period), or by judicial decree. 

3 Common Types of Easement

There are 3 main types of easement.

  1. Right of access: also called right-of-way; the right to use the property, allowing a third party to access or cross the land without trespassing; often used for utilities
  2. Re-entry: usually used for new developments, the right to re-enter to finish outstanding work, such as paving streets
  3. Maintenance: the right to access the property if it’s required to maintain the third party’s property, such as to wash windows or clean the eaves, or for utility maintenance services

How do easements impact property rights?

A property owner retains complete ownership of their property even if there’s an easement on the property. The owner has control over their property unless the easement allows the third party particular use that may limit how the owner can use or change the property. 

However, if someone violates an easement agreement, legal action can be taken against them, or, depending on the easement, the government may get involved.

Easements are tied to the land, so a property’s easements bind any future owner of the property. A title search or property survey will show any easements attached to the property. 

Real Estate Lawyers Can Help With Restrictive Covenants & Easements

Restrictive covenants and easements are important and are intended to be legally binding. However, some agreements are unenforceable. A real estate attorney can help you understand your rights as a property owner and review or draft any legally binding agreement, including restrictive covenants and easements.

If you’re involved in a dispute regarding a restrictive covenant or an easement, or if you need to remove a restrictive covenant or easement, a real estate lawyer can help. 

The real estate lawyers at Getz Collins and Associates can assist you with all real estate transactions, including title searches and helping you understand any restrictions or easements on a property before you buy it. Contact us today

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