Covenant
A covenant is a promise made in a deed or another recorded instrument concerning the land it covers. In a Virginia land sale the word carries two senses: a promise in a deed, which the Code can carry to the parties' heirs and assigns, and a recorded restriction on how the land may be used.
A few words in a deed that reach heirs, personal representatives and assigns
When a deed uses the words "the said ... covenants" and then states a promise, Va. Code 55.1-353 carries that promise past the covenantor and the covenantee. The statute says the covenant:
shall have the same effect as if it were expressed to be by the covenantor, for himself and his heirs, personal representatives, and assigns and shall be deemed to be with the covenantee and his heirs, personal representatives, and assigns.
Va. Code 55.1-353
The covenantor is the one making the promise; the covenantee is the one receiving it. The statute writes the heirs, personal representatives and assigns on both sides into the promise when the deed uses those words.
A grantor's promises about the title itself are deed covenants too, and Virginia gives them a shorthand of their own: the words "with general warranty" in the granting part of a deed stand for a covenant to warrant the property generally. What that promise covers is set out under general warranty deed.
A limit on use, recorded where the next owner can find it
The second sense is a recorded limit on what may be done with a parcel or with every lot in a group. In the plural these are restrictive covenants, and they have their own entry.
They are found in the land records, and turning up every one recorded against a parcel is work for a title examiner or an attorney.
Where recorded restrictions manage a whole development, the vocabulary shifts toward an association's documents, above all its declaration. How a declaration and an owners' association work on rural ground is laid out in covenants and HOAs on rural land.
Not every limit on a lot is a covenant
A covenant comes from a recorded instrument between private parties. A county ordinance comes from the county. The two can govern the same lot at the same time without being the same kind of rule.
The ordinances say so themselves. Carroll County's posted subdivision ordinance says it is "not intended to annul any easement, covenant or other private agreement", and Floyd County's Land Division Ordinance says it bears no relation to any private covenant recorded with a division plat. Who does enforce a private restriction, and where a county rule governs over one, is taken up in what restrictive covenants are and who enforces them.
A lot created by a family subdivision shows the difference. In Carroll County the holding period on that lot comes from the county's subdivision ordinance. It is a public rule, not a promise between the parties to the deed.
Found a covenant in your deed and wondering how it plays in a sale?
Send the deed book and page, or a photo of the covenant language, and Lowell will talk through where it fits in the sale and which questions belong with an attorney. No cost, no obligation.
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Questions about this term
Will a Virginia residential disclosure statement tell a buyer which covenants are recorded?
No. On a sale of residential property of one to four dwelling units, the statement set out in Va. Code 55.1-703 says the owner makes no representations or warranties "with regard to any covenants and restrictions, or any conveyances of mineral rights, as may be recorded among the land records affecting the real property". The same statement advises purchasers to exercise their own due diligence, including obtaining a property survey and contacting the locality about zoning and setback requirements.
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.
- Va. Code 55.1-353: effect of the word covenants Code of Virginia
- Va. Code 55.1-356: words of general warranty in a deed Code of Virginia
- Va. Code 55.1-703: residential property disclosure statement Code of Virginia
- Subdivision Ordinance, April 14, 2014 (private agreements; family subdivisions) Carroll County, Virginia
- Land Division Ordinance (private covenants and restrictions) Floyd County, Virginia
- Va. Code 55.1-701: the Residential Property Disclosure Act applies to one to four dwelling units Virginia General Assembly