Restrictive Covenants for Massachusetts Real Estate: What to Know

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What to Know About Massachusetts House Covenants

When you set out to purchase in a subdivision or other Massachusetts neighborhood, you may have unspoken rules you are unaware of.

You may be wondering what rules I am referring to. They are called restrictive covenants or house covenants.

Covenants could rear their head when you are purchasing a piece of land, new construction, or an existing home sale.

Property owners may use restrictive covenants to limit how future owners use land or to impose other restrictions.

Restrictive covenants can be used to preserve the land for future generations or maintain control over how the property is used.

When making a Massachusetts property purchase, there is a common belief you can do whatever you like as long as it meets zoning laws.

If restrictive covenants are in place, that will be far from the truth.

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What Are Restrictive Covenants?

Restrictive covenants are recorded document that prohibits specific uses of a property. They are typically put in place to protect the value of all the homes in a community.

Property covenants are recorded at the local registry of deeds. Restrictive covenants can be recorded as part of the deed or in a separate document known as a declaration of restrictive covenants. They will come up in a title search when a buyer intends to purchase a property.

Some buyers love restrictive covenants as they see them as a great way to keep uniformity within a given community.

Others disagree and see restrictive covenants as being just that - restrictive. Where you fall will probably influence your purchase decision when covenants exist.

What Are Examples of Restrictive Covenants?

Some of the most common examples of house covenants are the following:

  • The minimum square footage a home can be built.
  • The number of bedrooms.
  • Specific architectural designs that are not allowed - for example, split levels.
  • Restrictions on particular types of construction, such as modular housing.
  • Use as a residence and not a business.
  • Prohibition of raising livestock.
  • Restrictions on certain types of pets, like aggressive dog breeds.
  • The style and size of fences.
  • Restrictions on signs.
  • Regulation of commercial vehicles parked in the driveway.
  • Restrictions on exterior paint colors.
  • Specific rules regarding landscape and maintenance.

How Do Covenants Differ From Massachusetts Land Zoning?

While zoning and restrictive covenants will inhibit land use, the two have substantial differences.

Restrictive covenants are recorded as deed restrictions, while zoning regulations are recorded as part of local laws. Restrictive covenants are between private parties, while zoning ordinances are between local government and a private party.

Restrictive Covenants Can Not Violate Federal Fair Housing Laws

When a set of covenants are created, they need to be enforceable. In other words, they cannot violate laws.

The most blatant, unenforceable covenants would be those violating fair housing laws.

Covenants cannot discriminate based on color, race, familial status, national origin, sex, or religion.

Believe it or not, racially restrictive covenants used to be commonplace in the US. Back in the early to mid-1900s, language restricting other races and ethnic groups from buying in specific neighborhoods was typical.

These racial covenants were legal at the time. They were written to keep a property in the ownership of only white people. Because they were covenants going with the land, they could be enforced for endless amounts of time.

At the time, many homes had racial covenants prohibiting the sale to non-whites.

Thankfully, we have come a long way since then.

Who Enforces Covenants in Massachusetts?

If you live in a neighborhood with a homeowners association (HOA), the governing body has the legal right to enforce property covenants.

However, it is essential to note that violations can become unenforceable when not addressed for an extended time period. The loss of rights through delay is known as laches.

For example, if you construct a shed that violates the restrictive covenants and the HOA doesn't try to enforce it until several years later, they could lose their rights to enforce through laches, meaning you get to keep your shed.

How Long Are Covenants Enforceable in Massachusetts?

Property covenants do not last indefinitely in Massachusetts.

According to Massachusetts law, restrictive covenants executed after December 31, 1961, are no longer enforceable after 30 years.

The person seeking to enforce a restrictive covenant must own an interest in the benefited land when the enforcement is sought, be described in the covenant and specified as a beneficiary of the restrictions, be a party to the restrictive covenant, or be a successor to someone who is a party to the covenant for it to be enforceable.

Restrictions imposed before January 1, 1962, cannot be enforced more than 50 years after they are imposed.

This is the case unless a notice of restriction is recorded before January 1, 1964, or the expiration of 50 years, whichever is the latter. Additionally, Massachusetts law states that further notice of restriction must be recorded within 20 years of such notices for them to remain enforceable.

Final Thoughts on Massachusetts Property Covenants

Over my thirty-six years selling real estate, I've encountered numerous subdivisions with restrictive covenants.

Most of the time, they have not been overbearing but have a sensible set of rules that have protected property values for all homeowners living there.

If you have never lived in a neighborhood before, it is essential to research and become comfortable with any housing covenants.

It can be beneficial to seek out the assistance of a local real estate attorney to review these documents before purchase.

Did you enjoy this advice on restrictive covenants for homes in Massachusetts? See other real estate articles on News Break for more timely tips and advice. Bill often writes about general real estate, mortgages, finance, moving, and home improvement.

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Bill Gassett is an authority on numerous real estate topics, including finance, mortgages, moving, home improvement, and general real estate. His work has been featured in numerous prestigious real estate publications.

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