A restrictive covenant differs from zoning in that a covenant is:
Correct Answer
B) Private, enforced by the parties benefited
Why this is correct: A restrictive covenant is a private agreement recorded in the deed, typically created by a developer or neighbors. Enforcement is through private legal action by the parties who benefit from the restriction (e.g., homeowners' association or adjacent landowners). Why the other choices are wrong: 'Public, enforced by the municipality' describes zoning, not a covenant. 'Applicable only to commercial property' is incorrect; covenants are common in residential subdivisions. 'Automatically extinguished after twenty years' is false; covenants can have specified durations but do not automatically expire after a set period. Exam tip: Covenants are private; zoning is public. A property must satisfy both, with the more restrictive governing.
Why This Is the Correct Answer
Option B is correct because a covenant is a private restriction enforced by the parties it benefits, whether an association or individual owners with standing. It arises from a recorded agreement rather than from legislative action, and no municipal officer is charged with policing it. Remedies come through private litigation seeking injunction, damages, or removal of the offending condition. That private character is the defining contrast with zoning.
Why the Other Options Are Wrong
Option A: Public, enforced by the municipality
Public enactment and municipal enforcement describe zoning, not covenants, so this option names the other half of the comparison. A city has no authority to enforce a private covenant and generally will not involve itself in a dispute between an association and an owner. Building officials issue permits based on the code and the ordinance without checking the subdivision's private restrictions.
Option C: Applicable only to commercial property
Covenants appear across residential subdivisions, condominium regimes, and planned unit developments as well as in commercial and industrial parks, so there is no limitation to commercial property. Residential CC&Rs are in fact the most familiar example most candidates encounter. The option invents a restriction that has no basis.
Option D: Automatically extinguished after twenty years
No universal twenty-year sunset applies to covenants; they generally continue until they expire by their own terms, are amended by the required vote, or are extinguished under state law through doctrines such as abandonment or changed conditions. Some states do have marketable title statutes that can cut off old interests unless re-recorded, but that is state-specific and not a national rule. Assuming automatic expiration invites the same error as assuming non-enforcement equals unenforceability.
City hall versus the HOA
Ask who would come after you. If the answer is a code enforcement officer, it is zoning. If it is a letter from the association or an angry neighbor with a lawyer, it is a covenant.
How to use: Identify the enforcing party first, then the source of the rule. Public source with public enforcement means zoning; recorded private agreement with private enforcement means covenant.
Exam Tip
When zoning and a covenant conflict, the stricter one controls in practice. Appraisers must check both, because a permit from the city does not immunize an owner from an association's claim.
Common Mistakes to Avoid
- -Assuming a building permit means all restrictions are satisfied
- -Reviewing zoning without checking recorded CC&Rs
- -Believing covenants expire automatically after a set number of years
- -Applying the less restrictive of two applicable controls
Concept Deep Dive
Analysis
This tests the distinction between public and private land use controls, which govern the same parcel simultaneously and from different sources. Zoning is an exercise of the police power: a municipality enacts it to protect public health, safety, and welfare, a public agency administers it, and public officials enforce it through permits, citations, and injunctions. A restrictive covenant is contractual in origin, created by a developer or by agreement among owners and recorded so that it runs with the land, and enforcement comes from those it benefits, typically a homeowners association or neighboring owners, through private civil action. Because the two systems operate independently, they can point in different directions, and in practice the more restrictive one governs conduct: zoning that permits a six-foot fence does not override a covenant limiting fences to four feet. Appraisers must review both, because a covenant can constrain highest and best use just as effectively as an ordinance.
Background Knowledge
You need to distinguish public controls, including zoning, subdivision regulations, building codes, and environmental rules, from private controls such as covenants, conditions, restrictions, and easements. You also need to know that both bind the same parcel, that the more restrictive normally governs conduct, and that both must be considered in the legally permissible test of highest and best use.
Real-World Application
A buyer plans a detached workshop on a lot where zoning permits accessory structures up to 800 square feet but the subdivision covenants cap them at 500. You analyze highest and best use against the 500-foot limit, since the covenant binds regardless of what the city would approve, and note the conflict in the report.
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