Can I or Can't I? An Overview of Restrictive Covenants
02.05.2026
Author: Attorney Harry J. Gatto
The law often must balance the competing considerations of the rights of individuals in a community to own and enjoy private property, and the rights of their neighbors to own and enjoy their own private property without undue interference. These considerations often collide in the form of a compromise known as a restrictive covenant; agreements that prevent an owner from using property in some way that might impair the use, enjoyment, or property value of neighboring properties. For example, members of a certain community may agree on restrictive covenant that prevent any owner in the community from using their property to: a) engage in short-term rentals; b) operate certain businesses; or c) keep large numbers of animals.
A restrictive covenant comes into being when the owners of the real estate to be affected by the restrictive covenant all sign the restrictive covenant and record it in the office of the Register of Deeds. After that, absent specific language in the covenant, the covenant will remain with the property going forward; even if the real estate changes hands.
Restrictive covenants are most common in the context of subdivisions, where the initial developer sets certain rules and standards that each property in that development must follow. This is generally done to create certainty for people purchasing the lots, so people can be reasonably certain that a neighborhood will have a consistent character and look the same throughout. This may also have a positive influence on property values within that neighborhood or development.
While they are very similar in principle, restrictive covenants are different from zoning ordinances. Zoning ordinances also restrict the uses of land, but they are created by a local government. While certain laws prohibit a municipality from creating or enforcing certain zoning restrictions, those laws do not apply to restrictive covenants. Likewise, while most zoning ordinances will include “grandfather clauses” to make exceptions for uses that existed before the law prohibited them, “grandfathering” does not apply to restrictive covenants, unless the restrictive covenant has a specific provision that says otherwise.
Since restrictive covenants run contrary to the public policy of free and unrestricted use of private property, a covenant must be clear and unambiguous to be enforceable. If a court cannot clearly decipher the meaning and intention of those who created the covenant, it will choose the least restrictive interpretation possible. For example, a covenant that prevents parking “large vehicles” on a property would probably be considered ambiguous; arguably, most vehicles could be considered “large” and two people almost certainly would not agree about exactly which vehicles are “large” and which aren’t. However, if the covenant prevented parking “semi-trucks, RVs, or drivable construction equipment”, it has a much higher chance of being upheld because it lists specific types of vehicles.
If a restrictive covenant is unambiguous when created, its terms do not need to be reasonable so long as the parties agreed to them. However, the means of enforcing the covenant do need to be reasonable, even if it is unambiguous. There would need to be an egregious issue with an unambiguous restrictive covenant for a court to intervene and void it: impossibility of enforcement or performance, bad faith (a legal term that generally requires something like intentional deception or fraud by one party), or unconscionability (in short, where one party had no real bargaining power or choice in agreeing and where that party was very unfairly harmed by the terms of the agreement).
Anyone considering purchasing a lot within a development that has restrictive covenants should carefully review them prior to completing the purchase. Meeting with an informed and qualified attorney will substantially enhance a potential buyer’s understanding of the potential benefits and downsides of the covenants.