Covenants, Conditions and Restrictions 101
So you want to live in a Subdivision with an Owner's Association, Bylaws and Covenants, Conditions and Restrictions?
Find out what this means. Here is what you should understand. These rules are not always agreeable to everyone, but they are disclosed to anyone who is serious about purchasing property in such a subdivision. The following information has been prepared by one of our Association members to explain the ramifications of such agreements. So called "compromises" to the rules of our subdivision must be done legally and according to the bylaws.
Subdivision Law, The Architectural Control Board (ACB) and The Covenants, Conditions and Restrictions (DRCC).
Local government establishes developmental goals by creating a Comprehensive Plan or Master Plan to control the elements of growth. Those elements are:
- Land use and how much land is needed for various uses:
- Housing needs
- Transportation needs
- Community facilities
To have orderly growth and development the Master Plan requires regulations…these are specific to the location of the property, therefore the regulations are state and local. Examples are:
- housing density
- building codes
- restrictions on how land may be used
A sub divider must go through the process of land planning; his plan must agree with the Master Plan of the county where the land is located. It must be consistent with the state and local regulations mentioned above. The process is:
- The sub divider draws the land into Plats…designs a pattern of lots and street
- Draws up an environmental impact report
- Details easements for such things as utilities and amenities.
Subdivisions are a unique kind of land planning…unique because a subdivision allows for creativity: how to cluster the houses and arrange the open spaces. By clustering houses you greatly increase the open space for recreational uses: golf course, tennis and pool, trails, etc.
Private Land-Use Controls. In addition to state and local controls, private land-use controls are also an attribute of subdivisions. Certain restrictions control and maintain desirable qualities and create the character of a neighborhood. These private restrictions may not violate local, state or federal law. They are grouped into three categories:
A Covenant is a written promise between parties. A Condition is something that must be met. Example: in order to grade your lot you must submit a plan for the grading to the ACB and get it approved. (Section 7.03). A Restriction refers to the use of the land and is something you may not do. Example: You may not put a mobile home on your lot. (Section 8.04).
This body of rules if you will, is known as the Declaration of Restrictions, Covenants and Conditions. It is a body of state and county law. It is abbreviated DRCC. It is recorded in the County Clerk's office; its purpose is to protect the value and desirability of the land. It's provisions run with the land which means they are binding on all subsequent owners as the years pass. In order to make a change in a rule in the South Keswick DRCC you must have 100% of the property owners agreeing to the change expressed in a vote. That change must be recorded at the County Clerk's office.
The DRCC is upheld by decisions of the ACB and the administration of the Board of Directors which represents the Home Owners Association. The DRCC creates the ACB in Section 1.11 and spells out its duties in Article VII. The Association is created in Section V of the DRCC and its duties are spelled out in 5.03. The DRCC requires that its regulations be upheld by the Association. (See Section 5.04)
What is the relationship between the DRCC and the Bylaws? The DRCC is a compilation of land use law that defines the subdivision. The Bylaws are concerned with the Home Owners Association and are the directives for the administration of the Association's Board of Directors. The BOD is created and structured in Article III. The BOD's duties are spelled out in Article VI and VII. Articles II and V concerns meetings and voting rights. Article IV deals with elections of the BOD, Article VIII creates committees, and Articles IX through XIII deal with liability, insurance and other legal matters. The DRCC is incorporated into the Bylaws in full (Section 1.05). Should the two conflict, the Bylaws are subject to the DRCC (Section 1.06).
What is the relationship between the ACB and the BOD? The BOD appoints members of the association to the ACB, their names are on a list which is recorded in the county clerk's office. Why? Because the ACB is charged with seeing that the restrictions of the DRCC are adhered to. Following those directives is a legal matter. If the ACB is derelict or inaccurate in performing its duties as listed in the DRCC, liability falls onto the BOD, the body that appointed the ACB. Errors must be reported upon sale of the property in question in the Full Disclosure Packet delivered to the prospective new owner.