Deed Restrictions & CC&Rs
~10 min read · Enforce private controls and know when restrictive covenants outrank zoning.
Private land-use control travels in the deed: covenants, conditions, and restrictions that bind every later owner. The exam tests how CC&Rs run with the land, who enforces them, and the rule when private restrictions and zoning collide — the stricter one governs.
Deed restrictions and CC&Rs
A grantor may restrict future use by deed restriction (single conveyance) or by recording a declaration of CC&Rs over an entire subdivision — the developer's general plan. Valid restrictions bind successors when they touch and concern the land, were intended to run, and appear in the recorded chain of title (notice). Restrictions that are unlawful — racial covenants above all — are void and unenforceable.
- Created by deed language or recorded declaration
- Run with the land: intent + touch-and-concern + notice
- Discriminatory covenants: void, unenforceable, and illegal to honor
Enforcement
Enforcement is private: the HOA, the developer, or any benefited neighbor may sue — the remedy is an injunction (stop the violation) and sometimes damages; the government does not police CC&Rs. Defenses that kill enforcement: laches (sleeping on rights while the violation proceeded), abandonment/waiver (widespread ignored violations), and changed neighborhood conditions. A condition (as opposed to a covenant) is harsher — breach can forfeit title back to the grantor, which is why drafters prefer covenants.
- Neighbors and HOAs enforce by injunction
- Laches and widespread waiver defeat stale enforcement
- Condition breach can forfeit title; covenant breach = damages/injunction
Private vs public control
Where zoning and CC&Rs both speak, the landowner must satisfy BOTH — effectively the more restrictive controls. Zoning allowing chicken coops does not override a covenant banning them; a covenant permitting duplexes cannot defeat single-family zoning. HOAs add ongoing governance: architectural review, assessments (secured by liens), and rule-making within the declaration's scope.
Worked example
A subdivision's 1995 recorded CC&Rs require single-story homes and prohibit home businesses. The city has since rezoned the area to allow two-story construction and home offices. One owner builds a second story and opens a tax practice; for six years neighbors say nothing while three other two-story additions go up. Then the HOA sues over both the story and the business. Outcomes?
The second story: zoning permission is irrelevant — private restrictions coexist with public rules and the stricter governs; the addition violates the CC&Rs. BUT enforcement has slept: six years of silence (laches) while multiple identical violations accumulated (abandonment/waiver of the single-story covenant) — a court will likely refuse the injunction on the height restriction. The tax practice: if the business covenant has been consistently enforced against others, no waiver protects it — the injunction against the home business likely stands. Same declaration, opposite outcomes, because enforcement history, not the text alone, decides equity's remedies.
Common exam pitfalls
Letting zoning 'override' a covenant.
Both regimes apply independently — comply with the stricter; a permit never licenses a covenant breach.
Expecting the city to enforce CC&Rs.
Private restrictions have private plaintiffs: HOA, developer, benefited neighbors.
Ignoring enforcement history.
Laches and tolerated violations waive covenants — the restriction is only as strong as its enforcement record.
Recorded, it runs; neighbors enforce; sleep on it and lose it; and the stricter rule always wins.
Recap
- Deed restrictions and CC&Rs bind successors through the recorded chain
- Requirements: intent, touch-and-concern, notice
- Enforcement by injunction — HOA, developer, or benefited owners
- Defenses: laches, waiver/abandonment, changed conditions
- Conditions can forfeit title; covenants yield damages/injunctions
- Zoning and CC&Rs stack — the more restrictive governs
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