Restrictive Covenants: What’s Allowed?
Restrictive covenants are private restrictions on land use. The Massachusetts Land Court has introduced a proposed procedure (“standing order”) for addressing restrictive covenants which are void and not enforceable under the law.
Restrictive covenants have existed since the start of basic property law in early Anglo-American law. Such covenants allow for the use of restrictions on property. There is an infinite number of uses for restrictive covenants, but common ones include limitations on what can be built on property and the protection of open space and scenic views.
The law, however, isn’t crazy about restrictive covenants. There is a general concern about restricting someone’s right to use their property, and, for that reason, there are restrictions in place on the use of restrictive covenants. Most notable is a thirty-year deadline for the limitation of these restrictions.
Unfortunately, restrictive covenants have a dark history of being used for segregation and other racial discrimination. For that reason, Massachusetts explicitly bans the use of covenants for such purpose:
A provision in an instrument relating to real property which purports to forbid or restrict the conveyance, encumbrance, occupancy, or lease thereof to individuals of a specified race, color, religion, national origin or sex shall be void. Any condition, restriction or prohibition, including a right of entry or a possibility of reverter, which directly or indirectly limits the use for occupancy of real property on the basis of race, color, religion, national origin or sex shall be void, excepting a limitation on the basis of religion on the use of real property held by a religious or denominational institution or organization or by an organization operated for charitable or educational purposes which is operated, supervised or controlled by or in connection with a religious organization.
How to Deal With a Void Restrictive Covenant
The proposed Land Court order offers a procedure for those affected by such covenants, to obtain a court order (“declaratory judgment”) making it clear that such restrictions have no legal effect. A claimant would not need to pay a legal fee for filing such a case. The order, moreover, provides that the court will order that subsequent land records include a notation that the restriction is void.
While this proposed order clarifies the process for addressing improper restrictive covenants, such relief is already available to anyone affected by one of these covenants. A request for a declaratory judgment or quiet title is an option for any party seeking to clarify one’s rights under the law. This proposed order, nonetheless, is a good step in helping to resolve such matters.
If you need assistance with a restrictive covenant, contact me for a consultation.