Restrictive covenants
Restrictive covenants are private restrictions on how land may be used, recorded against a single parcel or against the lots of a subdivision. They come from recorded instruments rather than county ordinances, and in Virginia a covenant restricting occupancy or ownership on the basis of a protected class is void.
Recorded with a division plat, or carried in a declaration
A restrictive covenant is a limit on use that is put on record against the land. In a subdivision it can reach a reader two ways: as restrictions recorded with the plat that created the lots, or inside a declaration that sets up an owners' association.
Floyd County's Land Division Ordinance names the first route in its own words, speaking of any private covenant, agreement or restriction "which may be recorded with, or based on, any division plat"; who enforces restrictions of that kind is taken up in the answer linked below.
The second route is the declaration. What a declaration can put in a board's hands, and how an association comes to run a subdivision's roads, is the subject of covenants and HOAs on rural land.
Deed promises that have nothing to do with use, such as those about title, fall under the broader entry for covenant.
Kept apart from county ordinances, and void on a protected class basis
Two lines of law set the edges of a restrictive covenant: county ordinances that stand apart from it, and a state statute that voids some outright.
Beside the ordinance, not part of it
The county ordinances keep their distance. Floyd's Land Division Ordinance says no public official has responsibility for enforcing any private contract, and Carroll County's posted subdivision ordinance says it is not intended to annul any easement, covenant or other private agreement, while each ordinance governs where it is the stricter rule. Who does enforce a covenant, where a county rule governs over one, and which statutes leave covenants standing, is answered in what restrictive covenants are and who enforces them.
Void by statute
Some restrictions are void no matter when they were written into a title document. Va. Code 36-96.6 reads:
Any restrictive covenant and any related reversionary interest, purporting to restrict occupancy or ownership of property on the basis of race, color, religion, national origin, sex, elderliness, familial status, sexual orientation, gender identity, military status, or disability, whether heretofore or hereafter included in an instrument affecting the title to real or leasehold property, are declared to be void and contrary to the public policy of the Commonwealth.
Va. Code 36-96.6
Selling a lot with restrictions recorded against it?
Send the plat or the recorded restrictions, and Lowell will explain how they come up in a sale and which questions go to your attorney. No cost, no obligation.
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Questions about this term
Can a buyer refuse a deed that still contains a discriminatory covenant?
Yes. Va. Code 36-96.6 lets any person who is asked to accept a document affecting title to real or leasehold property decline it if it includes a covenant restricting occupancy or ownership on the basis of a protected class, until that covenant has been removed from the document. How the document is corrected is a question for the attorney handling the closing.
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 (private covenants and property owners' associations) Floyd County, Virginia
- Subdivision Ordinance, April 14, 2014 (easements, covenants and private agreements) Carroll County, Virginia
- Va. Code 36-96.6: restrictive covenants based on protected classes are void Code of Virginia