Restrictive covenants are contract terms which, if enforceable, follow the property or the person around even after the contract between the original parties is over. However, many owners are not aware that enforcement of restrictive covenants are disfavored by Virginia courts on public policy grounds. Community associations derive their power to collect $$$ from and enforce rules against their owners through restrictive covenants. Restrictive covenants that bind future owners are a legal device that predate HOAs and condominiums by hundreds of years. Today’s post focuses on what the legal requirements are for a contractual relationship to arise between the community association and a resale purchaser who did not sign off on the restrictive covenants originally. That post started some great conversations with attorneys, realtors and activists about how consumers could be better protected during the sale process. In a recent blog post, Does an HOA Disclosure Packet Effectively Protect a Home Buyer?, I wrote about how the existing legal framework fails to adequately disclose to the purchaser what it means to live in a HOA. The board’s assertion of the restriction may come as a surprise to the owner. The board claims that the rule is found in (or derived from) a document recorded in the land records encumbering all of the properties in the community. The issue of restrictive covenants often comes up in news or social media stories where a HOA or condominium demands that an owner take down an addition, a shed, a statue or some other architectural feature on the grounds that it offends the rules.
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