Question

A developer of a subdivision wants to preserve the open space and natural habitat that runs along the back portion of a series of large lots in the proposed subdivision.   He is debating whether to use restrictive covenants to accomplish this or to create a habitat easement on the same space. What are the pros and cons of each choice?

Answer 1

A developer may choose to use restrictive covenants to limit the use of the land for environmental purposes, while maintaining the quality, stability, and value of the surrounding lots. Restrictive covenants are strictly private because only parties of interest can enforce the covenant. In the case of an isolated deed restriction, the owner who created the restriction or that owner's heirs are the only persons who can enforce the restriction.

Restrictive covenants are used most often in subdivision developments to ensure the quality, stability, and value of the lots. However, they can sometimes have detrimental effects on the subdivision.

For example, adding a free standing garage or a chain link fence to one's residence may ideally increase the value, but the existence of restrictive covenants may limit a homeowner's ability to increase the property's value in that manner. Excessive restrictive covenants may diminish the property's value by effectively reducing the rights of the owner. Restrictive covenants may also become obsolete if the character of the neighborhood changes and hinder a property owner's rights.