In real estate, restricted covenants are contractual promises describing how a particular piece of property can be used. The restrictive covenant restrains specific uses of the property. For example, an owner’s deed may command that its land is only for commercial purposes.
If you are interested in restrictive covenants for a large area of land that you are developing, or if you question a restrictive covenant, contact Waco real estate attorneys at Dunnam & Dunnam for a free consultation.
Components of Restrictive Covenants
Restrictive covenants must contain certain ingredients, which lawyers refer to as “elements.” The following elements for a restrictive covenant must be met for it to bind later landowners:
- It must be in writing.
- There must be an intent to run with the land.
- The covenant must touch and concern the land.
- There must be horizontal privity.
- There must be vertical privity or privity of estate.
- The notice must have been given to subsequent purchasers of the covenant.
Differences Between a Restrictive Covenant and an Equitable Servitude
Similar to restrictive covenants, equitable servitudes are referred to by Texas courts as “implied reciprocal negative easements” or “implied equitable servitudes.” Both restrictive covenants and equitable servitudes are promises that restrict the use of the real property and bind the owner of the property and his successors. Equitable servitudes are broader than restrictive covenants because they do not have to be included in the written deed and are enforceable in court through injunctions.
Elements of Equitible Servitude
The two primary elements that must be met for the equitable servitude doctrine to save an otherwise unenforceable restrictive covenant are:
- A general plan or scheme for development must exist; and
- Subsequent purchasers must acquire their property with notice (either actual or constructive notice) of the covenant or servitude.
While restrictive covenants are usually resolved by the awarding of monetary damages to the aggrieved party, equitable servitudes are enforced with an injunction preventing the use of the property in the manner that is following the general plan.
Waco Restrictive Covenant Attorney
Contact the real estate lawyers at Dunnam & Dunnam to discuss the potential restrictive covenant issue that you have for your property. To schedule your free consultation, please call 254-753-6437.
Vance Dunnam Jr. is board certified in both residential real estate law and commercial real estate law by the Texas Board of Legal Specialization.