Restrictive Covenants May Be Eliminated in Certain Circumstances

By Michael M. DiCicco | mdicicco@bathweg.com

Although not favored in the law because they interfere with one’s right to use and enjoy real property, restrictive covenants are enforceable.  Restrictive covenants limit how a property owner can use his property and what he can build on property. Generally, the restrictions are contained in the deed that transfers the property or some document that relates to the property, like a subdivision approval.  Typical restrictions prevent houses of a certain size or style to be built on the property or limit the property to residential or commercial use.  Restrictions that limit one’s use and enjoyment of property cannot be disregarded by the owner of the property, but relief may be available to a property owner who wants to remove the restrictions.

Historically, courts enforce restrictive covenants that are contained in a deed or other document that is within an owner’s chain of title.  If the restriction is “clear, explicit, and unambiguous,” and does not violate public policy, it will be deemed valid on its face and will be enforced by a court.  For example, a restriction that limits the height of houses in a particular neighborhood so that all of the property owners retain unobstructed water views is enforceable because it is clear, explicit and unambiguous.  Conversely, a restriction that prevents a property from being sold to members of a specific race, religion, or ethnicity is unenforceable because it violates public policy.

Once it is determined that a restrictive covenant is valid on its face and thus enforceable, an owner may be able to eliminate the restriction through three different ways:

---

1. First, if the restriction is applicable only to a neighborhood of defined properties, the restriction can be rescinded if all property owners unanimously agree to remove the restriction. 
2. Second, if the restriction has been continuously not enforced, a property owner against whom enforcement is now sought may file a lawsuit to prevent enforcement of the restriction by establishing that the restriction has been abandoned. 
3. Third, a property owner against whom a restriction is sought to be enforced may seek to invalidate the restriction by filing a lawsuit and establishing “changed conditions” in the geographic area affected by the restriction.  In deciding whether there are changed conditions, the critical inquiry for a court is to determine what benefit the restriction is intended to bestow on the public and whether it would be unfair to enforce the restriction in light of that intended benefit and present day realities.

Restrictions on the use of property are enforceable even though they interfere with a property owner’s right to use and enjoy real property.  These restrictions, however, may be removed in certain circumstances.  If your property is subject to a restrictive covenant or you seek to enforce a restrictive covenant, you may reach out to Michael M. DiCicco, Esquire. Mr. DiCicco, a partner at Bathgate, Wegener & Wolf, has successfully represented property owners seeking to enforce and eliminate restrictions on real property.

Read The Basics: New Jersey Construction Lien Law by Michael DiCicco, Esquire

LEARN MORE ABOUT MICHAEL DICICCO

EMAIL MICHAEL DICICCO