Understanding restrictive covenants in Massachusetts real estate

Landowners may use restrictive covenants to limit the manner in which land is used by future owners, or to impose other restrictions.

When people in Massachusetts purchase land, they commonly believe they are able to do whatever they want with it, provided they are not violating any zoning regulations or laws. However, this is not necessarily the case. Landowners may put restrictions on property that apply to future owners through restrictive covenants.

What are restrictive covenants?

Restrictive covenants are a type of contract that impose conditions on the use of land. Somewhat similar to easements, their purpose is to ensure the preservation of the enjoyment and value of adjoining land. For example, this type of contract may require a home owner to paint his or her home a specific color at least once per year, bar a home owner from planting a tree that is over six feet tall or preclude a property owner from building certain types of structures on a property.

How do restrictive covenants differ from land zoning?

While they may seem similar in their specifications regarding land use, there are significant differences between restrictive covenants and zoning ordinances. Restrictive covenants are recorded as private compacts or deed restrictions. Zoning regulations, on the other hand, are recorded as local laws. Additionally, restrictive covenants are between private parties and zoning ordinances are between a government entity and a private party.

Are there exceptions to restrictive covenants?

Landowners are not given carte blanche to place restrictions on real property through restrictive covenants. There are a number of issues that cannot be limited using these types of contracts. For example, under Massachusetts law, restricted covenants that forbid the installation or use of solar energy systems may be deemed void.

With few exceptions, state law prohibits landowners from forbidding the lease, occupancy, encumbrance or conveyance of real estate based on color, race, national origin, sex or religion. Furthermore, landowners cannot preclude future landowners of property that permits residential use from allowing community residences for people with disabilities.

How long are restrictive covenants enforceable?

The limitations imposed through restrictive covenants are not indefinite. Under most circumstances, restrictive covenants executed after December 31, 1961 are no longer enforceable after 30 years, according to Massachusetts law. Additionally, the person seeking to enforce the restrictive covenant must own an interest in the benefited land when the enforcement is being sought, be described in the covenant and specified to be a beneficiary of the restrictions, is a party to the restrictive covenant or is a successor to someone who is a party to the restrictive covenant for it to be enforceable.

Restrictions imposed before January 1, 1962 cannot be enforced 50 years after its imposition. 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. Furthermore, state law stipulates that a further notice of restriction must be recorded within 20 years of such notices in order for them to remain enforceable.

Working with an attorney

Navigating the complexities of restrictive covenants may be challenging for some Massachusetts landowners. However, understanding the limitations imposed by these contracts may be vital to how they use their properties. For this reason, it may benefit those who are considering purchasing real property to seek legal guidance. An attorney may explain the restrictions they are dealing with and help guide them through the associated legal processes.