Deed Restrictions and CC&Rs: Meaning, Enforcement and How to Find Them

Because they are recorded and, in legal terms, attached to the land. Property covenants can sometimes be applied against later owners of the relevant property. A covenant that runs with the land is enforceable against and by future owners.

Under the common-law approach summarized there, a real covenant has to be in writing, relate to the property and meet two kinds of privity, a legal link between the original parties and later owners. An equitable servitude can bind later owners through notice instead of privity, and notice can be actual or constructive. Recording supplies constructive notice, which is why recorded restrictions reach buyers who never read them.

The exact tests vary by state, so the framework above is a starting point and not a substitute for local law. The practical point is simple: a buyer takes the property with every recorded restriction attached.

In a community with an owners' association, the association usually enforces the CC&Rs. Neighboring owners who benefit from a restriction can also sue in many places. Enforcement can mean a demand to fix a violation, fines under the declaration, or a court order.

Texas offers a clear example of the statutory background. Its Property Code says a restrictive covenant "shall be liberally construed to give effect to its purposes and intent" (Texas Property Code 202.003). It also lets a court assess damages: "A court may assess civil damages for the violation of a restrictive covenant in an amount not to exceed $200 for each day of the violation" (Texas Property Code 202.004).

The same section says an association's exercise of discretionary authority on a restrictive covenant is presumed reasonable unless a court finds it was arbitrary, capricious or discriminatory. Other states have their own enforcement statutes, so check the rules for the state where the property sits.

For community rules, recording is often required before they have effect. In Texas, a property owners' association must file its dedicatory instruments in the real property records of each county where the property sits, and the statute adds: "A dedicatory instrument has no effect until the instrument is filed in accordance with this section" (Texas Property Code 202.006). A rule that was never recorded may not bind a buyer.

Time can also matter. Florida's Marketable Record Title Act says that, subject to its exceptions, "a marketable record title is free and clear of all estates, interests, claims, covenants, restrictions, or charges" that depend on events before the root of title (Florida Statutes 712.04). Older restrictions can therefore be extinguished unless they were preserved or fall within an exception, and the rule is technical.

Many states have no such rule or have different time limits, and many declarations have their own renewal terms. That is why a title search reads the recorded document and its amendments, not just a summary of it.

Start with the deed into the current owner. It often says the property is conveyed "subject to" restrictions, easements and covenants of record, and it may name the recorded document by book and page or instrument number. That reference is the lead.

Next look at the subdivision plat map. Plats often carry notes about building lines and restrictions, and they reference the declaration recorded with them. The declaration itself is a recorded instrument, indexed under the developer or association and often cross-referenced under the subdivision name.

Then check for amendments, supplements and restated declarations. A community can change its CC&Rs by a vote, and each amendment is its own recorded document. A search that finds only the original declaration may miss a rule that was added or removed later.

Finally, read the title commitment. Schedule B usually lists recorded restrictions as exceptions to coverage, which means the insurer will not cover loss from them. The list is a map to the documents you should read.

No reliable count exists. County sales and recording records count transfers and loans, not whether a lot is subject to a declaration, and most recorders index declarations by name without a flag for how many lots they cover. Any national count of deed-restricted homes is an estimate from a trade group or a survey, not a record count.

The measured parts of this topic are the legal rules: the standard definitions, the Texas statutes on construction, enforcement and recording, and the Florida record title rule.

HeritageDeed reports the deeds, mortgages and liens recorded on a property in the counties on the title search coverage page. A report costs $49. A report shows the vesting deed and recorded liens, including association liens where the county records them, but it does not read or summarize a declaration of CC&Rs. It is not title insurance or legal advice.