What are restrictive covenants?
Restrictive covenants are private limits on how land may be used or built on, written into recorded instruments such as deeds, plats and declarations. Carroll's subdivision ordinance says it does not annul them; Floyd's says it bears no relation to them and no public official enforces private contracts. In both counties a stricter ordinance controls, and Virginia voids covenants restricting occupancy or ownership by protected class.
The county that approves the plat does not police the promises recorded with it
Start with who does not enforce them. Floyd County's Land Division Ordinance rules out enforcement by any public official in one sentence, and Carroll County's subdivision ordinance takes up the other half of the question: it does not cancel them either.
This Ordinance bears no relation to any private covenant, agreement, or restriction which may be recorded with, or based on, any division plat, nor shall any public official have responsibility for enforcing any private contract. When this Ordinance calls for more restrictive standards than are required by private contract, the provisions of this Ordinance shall control.
Floyd County Land Division Ordinance
This chapter is not intended to annul any easement, covenant or other private agreement, provided that where the regulations of this chapter are more restrictive or impose higher standards or regulations than such easement, covenant or other private agreement, the requirements of this chapter shall govern.
Subdivision Ordinance of Carroll County, Virginia
Read together, the two passages point the same way. A covenant in a deed or on a plat is a private arrangement. Neither ordinance strikes it out when a division is approved, and Floyd's says outright that no public official is responsible for enforcing it; Carroll's text does not address enforcement at all. What each county does do is apply its own ordinance on top: where the ordinance demands more, the ordinance governs. Where the covenant demands more, the ordinance does not cancel it, and whether it binds is read from the instrument itself.
A county can also be the author. Wythe County says its Progress Park is governed by protective covenants and development standards the Board of Supervisors adopted in 2001, and that those protections do not apply countywide. The short dictionary version of the term is under restrictive covenants in the glossary.
An association enforces some; a lone deed restriction goes to an attorney's reading
If the county is out, the question is who is in. Floyd's ordinance names one answer. Beyond the shared roads and facilities for which the county requires a property owners' association, it adds: "All other restrictions are created and enforced solely by the POA's membership, not by Floyd County."
Where a recorded declaration brings a development under Virginia's Property Owners' Association Act, its association acts under that declaration. Whether a new subdivision has to form an association in the first place is its own question, taken up in does a new subdivision need an HOA, and how an association runs once it exists is in covenants and HOAs on rural land.
Not every covenant comes with an association. A restriction written into a single deed or an old plat can sit in a parcel's record with no board, no dues and no rules committee behind it. Whether that kind of covenant still binds, who can enforce it, and what it actually prohibits depends on the wording of the instrument and the chain of title.
Where Virginia law voids the paper, where it leaves it alone, and how to find it
One class of covenant is void no matter when it was written: Va. Code 36-96.6 voids covenants that restrict occupancy or ownership on the basis of the protected classes it lists, and a person asked to accept a title document that still contains one may decline it until the covenant is removed.
Other statutes leave covenants standing. Va. Code 15.2-2290 requires localities that adopt and enforce zoning to permit manufactured homes in certain districts on stated conditions, but it says local zoning ordinances consistent with it "shall not relieve lots or parcels from the obligations relating to manufactured housing units imposed by the terms of a restrictive covenant." A zoning rule that permits a manufactured home and a covenant that restricts one can both apply to the same lot.
Finding the covenants on a parcel
Covenants live in the land records, not in the county ordinance, so they turn up through a title search of the recorded deeds and plats. The seller's paperwork is no substitute: on a sale of residential property of one to four dwelling units, the disclosure statement that Va. Code 55.1-703 prescribes disclaims any representation about recorded covenants and restrictions. What that statement does and does not cover is set out in does Virginia require a seller disclosure.
Finding the covenants of record on a specific parcel is work for a title examiner or an attorney, and it is best done before a purchase contract or a plat depends on what they say.
Found covenants recorded against a parcel?
Send the parcel's county and what the covenants appear to limit, and Lowell will talk through how they could shape a sale or a division and when the question needs an attorney. No cost, no obligation.
Got it. Thank you.
We'll be in touch shortly with an honest read.
Questions this raises
Is an old deed covenant restricting who may own the property still enforceable?
Not if it restricts occupancy or ownership on a basis Va. Code 36-96.6 lists. That section declares any such restrictive covenant, and any related reversionary interest, void and contrary to the public policy of the Commonwealth, whether it was included in the instrument before or after the law.
If the county approves my division plat, can a recorded covenant still limit the lots?
Plat approval and a private covenant run on separate tracks. Carroll's subdivision ordinance says it is not intended to annul any covenant or private agreement, and Floyd's Land Division Ordinance says it bears no relation to private covenants recorded with a division plat. Whether a particular covenant limits a particular lot is a reading of that instrument for an attorney.
Where this page's facts come from
Every rule, office and figure above traces to one of these. Rules change; check the office before you act on one.
- Land Division Ordinance Floyd County, Virginia
- Subdivision Ordinance, amended through April 14, 2014 Carroll County, Virginia
- Frequently Asked Questions: Progress Park covenants Wythe County, Virginia
- Va. Code 55.1-1801: applicability of the Property Owners' Association Act Code of Virginia
- Va. Code 36-96.6: certain restrictive covenants void Code of Virginia
- Va. Code 15.2-2290: manufactured housing and restrictive covenants Code of Virginia
- Va. Code 55.1-703: residential property disclosure statement Code of Virginia
- Va. Code 55.1-701: the Residential Property Disclosure Act applies to one to four dwelling units Virginia General Assembly