Private land-use controls: deed restrictions, CC&Rs, and HOAs

Private controls and public controls

Private land-use controls arise from private instruments. A deed restriction can limit one parcel; a recorded declaration of covenants, conditions, and restrictions (CC&Rs) can govern a development. Common provisions address residential use, setbacks, exterior appearance, architectural approval, and common-area obligations.

Zoning is a public control imposed through government police power. A government permit does not release a private covenant, and homeowners association (HOA) approval does not replace a required permit.

If zoning requires a 20-foot front setback and an enforceable covenant requires 30 feet, a building 25 feet from the boundary violates the covenant. A 30-foot setback satisfies both requirements. The more restrictive requirement controls this comparison; private permission cannot authorize a use prohibited by law.

Continuing obligations

Restrictions that run with the land can bind subsequent owners. Recording helps provide notice. Review the recorded declaration, amendments, applicable rules, and title information before committing to a use. Silence in the latest deed does not prove that earlier restrictions are absent.

An HOA commonly administers restrictions and maintains common property. Mandatory membership and assessment obligations can accompany ownership. Regular assessments support ongoing responsibilities; special assessments may cover expenses outside the regular assessment. The documents establish authority, payment obligations, and approval procedures. Restrictions can exist without an HOA, and other beneficiaries may have enforcement rights.

Enforcement and change

An injunction can direct an owner to stop a violation. Other authorized remedies may apply. Unpaid assessments may support a lien; a lien is not an automatic transfer of ownership. Amendment and termination follow applicable procedures, rather than one owner's preference. Expiration, release, or legal defenses may affect enforceability. Specific documents and applicable law determine validity and remedies; unlawful discriminatory restrictions are unenforceable.

Ask who created the control, what property it burdens, who can enforce it, and whether the proposed use satisfies both public and private requirements.