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Restrictive covenants: what they are and how to find them

A restrictive covenant is a private limit on how land is used, written into a recorded deed, plat, or declaration. It binds later owners. You find it at the register of deeds, and a real estate attorney confirms whether it still applies.

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Quick summary: This guide explains what a restrictive covenant is, how it differs from zoning, where it is recorded, and who enforces it. It is for lot buyers, infill builders, and owners who plan to build, split a lot, or change a use. The key takeaway: a covenant can bar what the zoning allows, and only the recorded documents show it.

What a restrictive covenant is

A restrictive covenant is a private promise, recorded against land, that limits what an owner may do with it. It runs with the land. It binds each later owner, not only the owner who signed it.

Covenants usually fall into four groups:

  • Use. Residential use only, single-family use only, or no commercial activity.
  • Building. A minimum house size, a setback, a height limit, required materials, or design review by a committee.
  • Lots. A bar on dividing a lot, or a minimum lot size larger than the zoning requires.
  • Structures and activities. Rules on fences, outbuildings, manufactured homes, livestock, and signs.

A covenant is not a public rule. No town adopted it, and the zoning map does not show it.

How covenants differ from zoning

Zoning is public law that a city or county adopts and its planning staff enforce. A covenant is a private agreement that owners and associations enforce in court. You must meet both. When they differ, the stricter rule decides what you can build.

One North Carolina case shows the gap. A town issued a permit for a house that met its street setback of 28 feet. A 1959 covenant on the lot required a street setback of 50 feet. Neighbors obtained a court order that stopped construction, as the UNC School of Government case summary describes. The permit did not protect the owner from the covenant.

To see which government writes the public rules for a lot, read Who regulates a property in North Carolina. To see what a zoning district leaves open, read A zoning label is only the beginning.

Watch for: A zoning permit does not clear a covenant. A town can issue a permit for a house that a recorded covenant bars. Have a real estate attorney read the covenants before you design the house.

Where covenants are recorded

Covenants are recorded at the register of deeds in the county where the land is. They appear in three kinds of documents.

Declarations. A developer records a declaration for a subdivision. North Carolina’s Planned Community Act defines a declaration as any instruments, however named, that create a planned community, plus their amendments. Amendments and supplements are separate recorded documents.

Plats. A recorded subdivision plat can carry restrictions in its notes, such as building lines or a ban on further division. Read Plat map: what it is and how to read one for where the notes sit.

Deeds. A seller can put a restriction in a single deed. It then binds that lot alone. A deed often says the land is “subject to” restrictions recorded at a stated book and page.

The Planned Community Act and owners associations

The Planned Community Act, Chapter 47F of the General Statutes, governs most subdivisions with an owners association. It applies to planned communities created on or after January 1, 1999. It does not apply to a community of 20 lots or fewer, or to a community with only nonresidential lots, unless the declaration opts in. A list of its sections also applies to older communities.

The Act gives the association powers unless the declaration says otherwise:

  • Adopt and amend rules and regulations.
  • Bring or defend lawsuits on matters that affect the community.
  • After notice and an opportunity to be heard, impose reasonable fines for violations of the declaration or the rules.

Covenants can change. Under the Act, an amendment to the declaration needs the vote or written agreement of owners of lots with at least 67 percent of the association’s votes, unless the declaration requires more. The amendment takes effect when it is recorded. A challenge to its validity must be brought within one year after recording.

How old covenants can expire

Some old covenants lose their force under the Real Property Marketable Title Act, Chapter 47B. An owner with a 30-year chain of record title holds title free of most claims that depend on events before that 30-year period.

The Act lists exceptions that survive. Three matter most for covenants:

  • Residential-use covenants. Covenants in a general or uniform scheme of development that restrict the land to residential use survive. Other old restrictions do not get this exception.
  • Planned community declarations. Declarations of a planned community to which the Planned Community Act applies survive. For a community created before January 1, 1999, this exception needs an owners association in existence as of July 1, 2022.
  • Specific references. A restriction survives when a deed in the 30-year chain refers to it by book and page. A general reference is not enough.

State law also voids some covenants outright. A covenant that bars solar collectors on residential property is void, though a covenant may still regulate their location or screening.

Whether a given covenant survives is a legal question. A North Carolina real estate attorney answers it.

How to find the covenants on a lot

You find covenants by reading the recorded documents in order, from the current deed back.

  1. Read the current deed. Note each “subject to” reference and its book and page.
  2. Pull the recorded plat and read its notes.
  3. Search the register of deeds index for the declaration, every amendment, and any supplement. Indexes often search by name, not address. One county office states that its records are searchable by name only.
  4. Ask the owners association for its current rules and design guidelines. Rules that the association adopts may not appear as recorded documents.
  5. Have a North Carolina real estate attorney run a full title search and give an opinion. Register of deeds staff are prohibited by law from performing title searches. See Title search for land: what it finds and who does it.

Take action: Send the lot’s address or parcel number before you design a house or a split. Start with Can the house you want fit on this lot?

Who enforces covenants and who answers the question

Owners associations and lot owners enforce covenants, through the courts. The town does not. An association can sue and fine under the Planned Community Act. Neighboring lot owners can also bring suit, as the neighbors did in the setback case above.

Covenants matter most for infill work. A covenant can bar a second house, a smaller lot, or a split that zoning allows. Read Lot split: can you split your lot for the zoning side. If a rule leaves no reasonable use of a lot, read Zoning variance: when the board of adjustment can relax a rule.

The record shows which covenants are recorded and where. It cannot show whether a court would still enforce one. A real estate attorney interprets the covenants. A licensed land surveyor plots covenant setback lines on the lot. We read the record in a fixed order and hand you the open questions.

Key recap

  • A restrictive covenant is a private, recorded limit on land use that binds later owners.
  • Zoning and covenants are separate. You must meet both, and a zoning permit does not clear a covenant.
  • Covenants live in declarations, plat notes, and deeds at the register of deeds.
  • The Planned Community Act governs most association subdivisions created on or after January 1, 1999, including fines and amendments.
  • The Marketable Title Act can end old covenants after 30 years, but residential-use covenants in a common scheme and planned community declarations survive.

Questions

Are restrictive covenants the same as zoning?

No. Zoning is public law that the city or county enforces. A covenant is a private restriction recorded against the land, and owners or an association enforce it in court. A lot must meet both.

Do restrictive covenants expire in North Carolina?

Some do. The Marketable Title Act can extinguish restrictions older than a 30-year chain of record title. Residential-use covenants in a common scheme, planned community declarations, and restrictions cited by book and page in the chain survive. A real estate attorney decides which case applies.

Can an owners association change the covenants?

Yes, within the declaration and the Planned Community Act. An amendment usually needs owners with at least 67 percent of the votes, takes effect when recorded, and can be challenged for one year after recording.

How do I find restrictive covenants on my property?

Start with your deed and its “subject to” references. Then read the recorded plat and search the register of deeds for the declaration and its amendments. A title search by a real estate attorney confirms the full set.

References

Primary sources cited on this page, in APA style.

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