Are Restrictive Covenants enforceable and actively followed?

[_chickengirl1]

I have been house hunting in South Carolina for a place for me and my three hens. Wondering if anyone else has run into issues with a restrictive covenant (not HOA) that was written when the neighborhood was built? Do you find these are closely followed or enforced?? I know I could try to fight to have it changed once I'm there, but I'd just hate to buy a house knowing there was a change I would have to get rid of my ladies (which is not happening).

Greenville County allows up to 8 hens per yard so I have limited my search to only looking at homes outside of HOAs. Now what I'm finding is that a lot of these older neighborhoods have restrictive covenants that were written 40+ years ago that have a clause about animals - usually stating "households are allowed dogs, cats or caged birds for pleasure". I of course consider my girls could fall into the category of "caged birds" but I'm not sure others would....

Any feedback would be appreciated.

 

[Acre4Me]

Under social, post in the SC thread. Under “where am I, …”. You will get sone insight from SC people.

Those covenants…if you didn’t sign anything, I don’t know how enforceable they are. But, it’s a good way to get your neighbors potentially irritated at you if you are doing something not typical and perceived negatively. So, I’d find out who is in the committee for managing/overseeing the covenants. If someone violates them, what is done. Does your realtor have any insight?

 

[U_Stormcrow]

**MAYBE**

Now, I am NOT a Lawyer. I am not trained to, licensed to, or admitted to the practice of law anywhere in the US, or any other place. On the subject of deed restrictions, it varies A LOT by State, and by the nature of the Restriction itself.

So, here is my understanding as a reasonably well read lay person, with an odd choice in reading habits... I'll provide some examples.

A restrictive Covenant which prevents the sale of the land based on race or religion*. These are unenforceable, nationwide, and have been for decades. They used to clutter up titles in a number of States, but are now largely gone from the deeds. There may still be enforcable restrictions for the conveyance of a religious cemetary, but that's about it. Arguably, under current case law, restrictions on certain other nationally recognized protected status (excepting age) are likewise probably Void on their face.

A restrictive Covenant for the benefit of the conveyor *is* generally enforceable. Most commonly, these are now seen as easements. Say Joe has a long narrow property, and sells you the "front" half of it, with a covenant that you not develop the section where he has an ATV track leading to the back of it (and his property) - that's a covenant. Its also an easement, allowing him passage over what is now your land. Here's the difference between the two - in the case of a covenant, it usually ends when it no longer benefits the conveyor - so if Joe dies, the covenant protecting the path dies with him. Easements don't - and since the easement provides the primary (and we'll assume only) access to Joe's land, an easement would protect that right of access.

If, on the other hand, the covenant ensured that the new purchaser would not build any structure larger than a single story wood cabin on the opposite side of a shared lake - that's enforcable so long as Joe lives. When he dies, his right to control your use of the property for his benefit (I'd have never have sold that half of the property if I realized you were building a sports stadium on the other side of my fishing lake!) ends with it.

Now, here's where it gets complicated. In plenty of States, and South Carolina was (and I think, still is), one, a community in commons has a right in equity to enforce certain shared covenants. This is legacy from before HoAs. Imagine someone platted up a bunch of land for a development, and wrote the same covenants into all the plats. I.e., in the "community" of Tanglewood, no pets are allowed, and each property must maintain at least 40% of the land as "wooded", with no structures over two stories. The same covenant is written into every 1/2 acre deed. ANY member of the community with similar deed restrictions can go to court and seek to enforce those covenants against any other, and have a decent chance at prevailing. Much like an HOA or POA.

Here's an example case. (unpublished)

And there have been recent efforts in SC to change its laws regarding enforcement of restrictive covenants, but they've gone nowhere.

Aint't the internet great?

 

[Battlepants]

On the note of HOAs, those aren't necessarily going to ban chickens. For example, my HOA allows me to have chickens (including roosters), goats, pigs and even a horse, in addition to my dogs and cats. To my knowledge, the only animals they banned are cows.

It will take some extra effort, but if your realtor requests the HOA bylaws, that should disclose if your chickens will be allowed. That being said, on the note of enforcement, assume they will enforce it and plan accordingly. A friendly neighbor who broke a few minor rules will likely be overlooked, but you never know if you will end up dealing with a jerk that just wants power.

 

[U_Stormcrow]

I posted this months ago, re: HOAs.

Obviously, not all HOAs restrict animal ownership, they are formed for a host of reasons. But in the main, they tend to be intrusive, and tend to attract people to their leadership who enjoy a bit of power.

 

[Brooks_]

I posted this months ago, re: HOAs.

And it still makes me laugh.