THE VIRGINIAN-PILOT
Copyright (c) 1995, Landmark Communications, Inc.
DATE: Saturday, June 17, 1995 TAG: 9506150352
SECTION: REAL ESTATE WEEKLY PAGE: 32 EDITION: FINAL
COLUMN: ABOUT THE OUTER BANKS
SOURCE: Chris Kidder
LENGTH: Medium: 91 lines
Deeded covenants - private land use and architectural controls - are some of the more misunderstood provisions of real estate ownership.
Deeded covenants can make or break property values, neighborhood friendships and dreams of one's home being an inviolate castle. They can be ignored. They can be misinterpreted.
A common misconception about these covenants - called protective or restrictive covenants, depending on your point of view - is that they are laws. They aren't.
The use of deeded covenants goes back to the early 19th century. They began as legal documents, recorded with property deeds, outlining responsibilities and fees for homeowners associations.
In the 1930s, when the courts restricted municipal zoning to matters promoting public welfare, health, safety and morals, developers began writing deeded covenants that restricted property use in ways that zoning could not.
Deeded covenants can address almost anything - from what color light bulbs a property owner puts in a porch light to whether an owner can breed and sell cats - as long as the restriction or requirement is legal.
No public governmental body enforces protective covenants. Their enforcement is a civil matter, not criminal. The burden of enforcement falls on the individual property owner or a homeowners' association.
If an individual or group cannot afford to hire a lawyer to sue for the enforcement of protective covenants - or chooses not to pursue legal remedies - the covenants are worth no more than the paper on which they're printed.
Deeded covenants are usually created by a developer before land in a subdivision is sold. In North Carolina, the developer files a detailed document called a ``declaration of restrictive covenants'' with the Register of Deeds. Deeds for each individual land sale do not contain the restrictive covenants but refer to the master document.
A good real estate agent will see that a prospective buyer gets a copy of covenants before making an offer to purchase. The attorney handling the sale should make sure the buyer is aware that covenants exist. The buyer should read the deed.
But does everything always get done as it should? Judging from the calls and letter I receive, the answer is a definite ``no.''
And, unfortunately, knowing a property is restricted by covenants isn't enough. Prospective buyers need to find out whether the covenants are enforced.
For buyers who view covenants as protection for their real estate investment, enforcement is critical. Almost without exception, the key to meaningful protective covenants is an active homeowners association.
Homeowners who view an association as a mere social obligation, or who find nothing objectionable about an inactive association that has suspended its dues, are missing the point.
Covenants are useless without a funded group that has both the authority and the monetary resources to act quickly when covenants are breached. Once property owners are allowed to circumvent covenant restrictions, future enforcement is jeopardized.
Worse than protective covenants with an inactive homeowners association are protective covenants without one. On the Outer Banks, few subdivisions built before 1985 have homeowners associations and yet a majority have deeded covenants.
In the absence of a homeowners association, developers have provided property owners with a legally-enforceable set of promises. That's all. Many buyers believe they've bought something more.
When Reba and Leon Alston bought their lot in North Woods on Roanoke Island in 1983, they read their restrictive covenants. In fact, they considered the restrictions an asset to their property.
North Woods lots could be used only for residential purposes. The covenants prohibited trailers ``of any kind'' and ``mobile'' homes from use ``on lot or land time either temporarily or permanently . . . ''
The developer would approve all construction plans, according to the covenants, ``in order to preserve a desirable beauty and to protect purchasers of these lots and lands from having undesirable types of architecture placed on abutting properties . . . ''
But two years ago, a neighboring property owner trucked in a modular house that looked like a double-wide trailer. The Alstons were shocked to learn there was nothing they could do short of filing a lawsuit and paying the lawyer out of their own pockets.
Next week, we'll look at why protective covenants didn't provide the protection the Alstons expected. ``It's too late for us to do anything about our situation,'' said Reba. ``I'd just like to help someone else avoid the same problem.'' MEMO: Send comments and questions to Chris Kidder at P.O. Box 10, Nags Head,
N.C. 27959.
by CNB