Property Covenants vs. Property Codes –

When They Say Different Things, Which Rule Applies?

 
            Lately we’ve fielded a number of questions from residents and HOA board members about the differences between “Covenants” and “Property Codes.” Usually questioners wonder which trumps the other when the two seem to be in conflict.   Like a lot of things in life, the answer can be both easy and complex at the same time!suburban-neighborhood-540.jpg
 
First the definitions:
 
            When we are talking about residential neighborhoods, a covenant can be defined as a rule regarding the permitted uses of land and structures that a property owner has agreed to when he or she made their purchase. This agreement will have been part of the official deed issued and agreed upon when the property was sold. Because of that, the restrictions or “guidelines” in a property covenant are as binding on the land owner as any signed private contract would be. 
 
            You will most often see covenants (or what are sometimes called “architectural standards”) used in organized, planned developments. Research by the Community Associations Institute (CAI) and other organizations shows that thoughtfully drafted and equitably enforced covenants can be quite effective in maintaining the long term value and quality of life that was envisioned by the builder or original homeowners of a specific neighborhood. Future owners are essentially “buying into” that original vision and the restrictive covenants in freely choosing to purchase that property.
 
            Because covenants constitute a private agreement between private parties, non-compliance to covenants by a property’s owner would not result in criminal charges or any kind of government enforcement. But covenant disputes can wind up as a matter of private litigation between citizens in a civil court or in a binding mediation program.
 
            On the other hand, while a property code or County ordinance also affects permitted uses of private properties, it does so only in the context of community health and safety generally throughout a jurisdiction. (It should be noted however that the research also shows that well enforced property codes and ordinances do in fact contribute positively to both value and quality of life in neighborhoods.)
 
            As these rules apply to all residents in a jurisdiction, property codes and ordinances have the full force of law and government enforcement behind them. They are binding on all citizens under that local government’s jurisdiction and can be enforced by government officials and law enforcement. Non-compliance on codes and ordinances can indeed become a criminal matter and can result in criminal penalties, most often for the property owner.
 
            That means a covenant is always more restrictive than the local property code because it is based not on a general standard of community health and safety but rather on a specific and subjective vision for quality of life and property value articulated and agreed upon by a group of private citizens. Of course covenants cannot be infinitely restrictive and cannot contravene the basic protections afforded residents by the U.S. and Virginia constitutions.
 
            But because they are private agreements, governments cannot get involved in the enforcement of covenants.  If a board or another property owner wanted to settle a dispute over a covenant with a resident whom they believe to be out of compliance, private mediation or civil litigation are the best options.
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            So in the real world it looks like this:  Say a property has been purchased and the covenant associated with the deed spells out a restriction on front yard fencing. A year later the owner seeks approval directly from the County to build a fence in his front yard.  The County will indeed certify that a fence of this kind is permissible generally in Prince William County. But it is not local government’s business to regulate more restrictive agreements that may have been made between private parties in the form of covenants.  In this case, the HOA or other property owner association would likely act to prevent the property owner from breaking faith with the covenant and demand he or she desist from erecting the fence. If necessary they could bring a civil suit to prevent construction and even seek compensation in the form of fines from the property owner if the covenant restriction is found to have been valid. 
 
            The best way to avoid these kinds of unpleasant and costly exchanges between neighbors is to read and understand your deed!  If it appears to be more than you bargained for (in terms of land use restrictions) find out how to file for an exception or how you can get the covenants changed. 
 
            If a covenant put forward by a developer or original group of homeowners decades in the past no longer seems to make sense for your neighborhood, propose to your HOA or other governing association that the covenants be altered, updated or removed.   The process for this will be outlined in the bylaws and governing documents of the neighborhood you live in.  Sometimes it is easy to make a change to covenant restrictions, at other times it seems nearly impossible.