Talk:Restrictive covenant

Merger proposal

Would it not be wise to merge this page with that of 'covenants running with land' - it strikes me that the two subjects are almost identical? - although I could be mistaken! Stuartwilks 11:16, 17 May 2008 (GMT)

I removed the merger proposal due to the historical and modern significance of restrictive covenants, and the absence of discussion on this page regarding the proposed merger. - Freechild 18:07, 29 March 2007 (UTC)[reply]

Grammatical

Are people really going to think "restrictive covenant" is a grammatical term? --Calieber 00:22, 11 Oct 2003 (UTC)

No less so than "grammatical term". 18.26.0.18 21:12, 26 Jan 2005 (UTC)

Restrictive covenant questions that could be addressed

The information here is interesting, but what examples of the legal implications are there?

This is no use to anyone who doesn't live in America. UK one needs to be prepared.

How does a homeowner's association enforce a fine? They aren't endowed with any real ability to levy penalties such as jail time or taking one's home for non-payment of a fine. Granted, they can take a non-compliant homeowner to civil court, but that's a different story.

Why courts have invalidated discriminatory covenants, what other examples of covenants are there that can be considered unenforcable?

How does one obviate one's obligation to a covenant? By what mechanism of law does a covenant remain with the property?

Who decides what the covenant covers, and what checks and balances are there?

--JD 04:14, 8 Jun 2005 (UTC)

Item1--Forclosure action, ie they take the house away. There are examples of homes being forclosed for as small a fine as $50

Item2--Failure to enforce covenants may invalidate the covenants

Item3a--almost nothing, save failure to enforce.

Item3b--Civil action only(in most states)

Item4--The property owner that puts them in place, and almost none.

Ralph 8Feb06

Another important "check and balance" on deed covenants is the time limit. In Michigan, as I understand it, covenants are unenforceable unless they have an expiration date (I think the maximum is 40 years). Covenants which claim to run in perpetuity are essentially void. However, a covenant may provide for its own renewal. Renewals rarely happen, but they are valid when they do. Kestenbaum 02:03, 24 April 2006 (UTC)[reply]

FCC and antennas

In "In addition, other covenants have been unenforceable as being against the police power. For example, the Federal Communications Commission has ruled that a covenant cannot restrict a homeowner's right in placing an antenna so as to receive any signal broadcast over the public airwaves (whether radio or television)." Shouldn't "police power" be "public policy"

Also doesn't the FCC rules says "prohibit" not "restrict" (see PRB1)

Ralph 8Feb06

I do not believe that PRB-1 has anything to do with TV or radio antennas, only with Amateur Radio antennas. And PRB-1 only protects against Government restrictions, not private restrictions placed by HOAs and Condo associations. See theARRL website Ryan 19:37, 23 April 2006 (UTC)[reply]

In addition to covenants that are racially discriminatory, there are a myriad of other kinds of covenants that would not be enforced by a court. Any covenant that would be deemed by a court to be an unreasonable restraint on transferability would not be enforced, for example. —Preceding unsigned comment added by 76.27.243.219 (talk) 03:44, 11 December 2007 (UTC)[reply]

FCC PRB-1 Ruling

I replaced an incorrect paragraph in the "Controversy" section. The original paragraph stated:

"In addition, other covenants have been unenforceable as being against police power. For example, the Federal Communications Commission has ruled that a covenant cannot restrict a homeowner's right in placing an antenna so as to receive any signal broadcast over the public airwaves (whether radio or television). The same decision also prohibits any local law from having restrictions over use of unlicensed airwaves. For example, where an airport authority insists that airport lessees such as airlines use its wireless network for data transmission (and thus pay for the privilege), the FCC has stated such requirements are invalid. So would be a local law or covenant restricting use of transmission equipment either licensed by the FCC or for which the FCC has declared a license is not required."

In reality, the FCC's four-part PRB-1 ruling indicated that its preemption policy would not apply to restrictive covenants.

PRB-1 1985^[1]

On 16 Jul 84, the American Radio Relay League, Inc. (ARRL) filed a Request for Issuance of a Declaratory Ruling with the FCC. ARRL requested that the FCC issue a statement preempting local ordinances that preclude or inhibit amateur radio communications. ARRL apparently also requested that this statement preempt restrictive covenants found in deeds and leases. The FCC stated: "Since these restrictive covenants are contractual agreements between private parties, they are not generally a matter of concern to the Commission. * * * Purchasers or lessees are free to choose whether they wish to reside where such restrictions on amateur antennas are in effect or settle elsewhere." Footnote 6 stated: "We reiterate that our ruling herein does not reach restrictive covenants in private contractual agreements. Such agreements are voluntarily entered into by the buyer or tenant when the agreement is executed and do not usually concern this Commission."

PRB-1 1999^[2]

On 7 Feb 96, ARRL filed a Petition for Rule Making with the FCC. The FCC initially noted: "However, [in PRB-1 1985] the Commission did not extend the limited preemption to covenants, conditions and restrictions (CC&Rs) in deeds and in condominium by-laws because they are contractual agreements between private parties. Petitioner, inter alia, requests the extension of the limited preemption to such CC&Rs." The FCC found: "6. The Commission's policy with respect to restrictive covenants is clearly stated in the MO&O establishing a limited preemption of state and local regulations. In the MO&O, the Commission stated that PRB-1 does not reach restrictive covenants in private contractual agreements. * * * Notwithstanding the clear policy statement that was set forth in PRB-1 excluding restrictive covenants in private contractual agreements as being outside the reach of our limited preemption, we nevertheless strongly encourage associations of homeowners and private contracting parties to follow the principle of reasonable accommodation and to apply it to any and all instances of amateur service communications where they may be involved. Although we do not hesitate to offer such encouragement, we are not persuaded by the Petition or the comments in support thereof that specific rule provisions bringing the private restrictive covenants within the ambit of PRB-1 are necessary or appropriate at this time. Having reached this conclusion, we need not resolve the issue of whether, or under what circumstances, judicial enforcement of private covenants would constitute 'state action.'"

PRB-1 2000^[3]

Following PRB-1 1999, ARRL filed a petition for reconsideration, contending that the Telecommunications Act of 1996 provided the FCC with authority to address CC&Rs. ARRL argued that restrictive covenants "have never been the equivalent of private contracts" and that the purchaser "never actually agrees, and very seldom even understands when he or she buys property subject to deed restrictions that amateur antennas are not permitted." The FCC again declined to extend the limited preemption policy to CC&Rs. The FCC noted:

"2. In its 1985 PRB-1 decision, * * * the Commission expressly decided not to extend its limited preemption policy to covenants, conditions and restrictions (CC&Rs) in deeds and in condominium by-laws."

"3. On February 7, 1996, ARRL filed a petition for rule making seeking a review of the Commission's limited preemption policy. ARRL requested, inter alia, that limited preemption be extended to CC&Rs. In an Order, released November 19, 1999, we denied the petition for rule making. We concluded that specific rule provisions bringing private restrictive covenants within the ambit of PRB-1 were not necessary or appropriate. On reconsideration, the petitioners reiterate the request that the Commission's limited preemption policy be extended to CC&Rs."

The FCC noted that authority (if it exists) to address CC&Rs in the context of amateur radio facilities would not warrant revisiting the exclusion of CC&Rs from the FCC limited preemption policy.

PRB-1 (2001)^[4]

On 15 Dec 00, the ARRL filed an Application for Review again requesting that the FCC "expand the Commission’s limited preemption policy for antennas and antenna support structures used in the Amateur Radio Service to include covenants, conditions and restrictions (CC&Rs) contained in deeds, bylaws of homeowner associations (HOA) or regulations of an architectural control committee (ACC)." For the fourth time, the FCC rejected the ARRL's request, stating: "[W]e conclude that the Bureau’s denial of the subject petitions for reconsideration, insofar as they pertain to inclusion of CC&Rs in private covenants, was correct and should be affirmed. Therefore, the scope of the limited preemption policy of PRB-1 for amateur radio stations remains applicable only to regulations of state, county, municipal and other local governing bodies, and is not applicable to HOA bylaws and ACC regulations."

I realize this is more detail than usual, but I want to make sure the correct facts are reflected.--Rpclod (talk) 17:45, 9 May 2008 (UTC)[reply]

Religious segregation

This article should mention something about the use of "restricted" with respect to religion, including information about whether "restricted communities" such as existed in Connecticut and the Palm Springs areas were backed up by official restrictive covenants or merely common understandings. There are references to this time of "restricted community" in the book and film Gentleman's Agreement and in Allan Sherman's autobiography A Gift of Laughter, as well as in at least one film version of Auntie Mame. I would add it myself if it weren't for the fact that I don't know about whether these were written or unwritten covenants, and I have no more time this afternoon to research the topic. (Using pop-ups, I was able to find that the article on Darien, Connecticut indicates restrictions there were unwritten.) So for now, I'll metaphorically "stick a pin in it" and come back to it if no one else does. Lawikitejana 22:34, 7 November 2006 (UTC)[reply]

Absolutely, I have seen deeds from the 1920s containing restrictive covenants which prohibit Jews as well as non-Caucasians. Kestenbaum 22:47, 7 November 2006 (UTC)[reply]

Many older deeds have racially restrictive covenants. They won't be enforced by courts, though. Private individuals in the U.S. are free to form restrictive covenants as to race, but the 14th Amendment has prohibited state enforcement of such covenants. —Preceding unsigned comment added by 76.27.243.219 (talk) 03:47, 11 December 2007 (UTC)[reply]

Employment

This article says nothing about restrictive covenants in the context of employment contracts - is there a separate article for this? 217.34.39.123 14:35, 1 March 2007 (UTC)[reply]

I was just going to say the same thing. The term Restrictive Covenant, in Scots Law at least, refers to a restraint of trade in an employment contract. They are enforceable in Scotland to the extent that they are fair and reasonable in their context. I guess I'm not too bothered whether this information appears in the article or not, but I do think that the article needs to be precise about where this term is in use with the particular meaning described. I'm guessing the USA, purely from the language used, but the problem is that I have to guess... Ismith 17:29, 8 March 2007 (UTC)[reply]

The whole article is too Americentric and skewed towards the racial issue. Restrictive covenants are not exactly uncommon in English/Welsh property law, yet there is nothing here. Nick Cooper 11:30, 11 March 2007 (UTC)[reply]

Regarding employment contracts, please see Non-compete clause.--Rpclod (talk) 14:03, 1 December 2008 (UTC)[reply]

References

^ Federal Preemption of State and Local Regulations Pertaining to Amateur Radio Facilities, Memorandum Opinion and Order, FCC 85-506, 101 FCC 2d 952 (1985)
^ Modification and Clarification of Policies and Procedures Governing Siting and Maintenance of Amateur Radio Antennas and Support Structures, and Amendment of Section 97.15 of the Commission’s Rules Governing the Amateur Radio Service, Order, FCC 99-2569, 14 FCC Rcd 19413 (1999)
^ Modification and Clarification of Policies and Procedures Governing Siting and Maintenance of Amateur Radio Antenna and Support Structures, and Amendment of Section 97.15 of the Commission’s Rules Governing the Amateur Radio Service, Order on Reconsideration, RM 8763, 15 FCC Rcd 22151 (2000)
^ Modification and Clarification of Policies and Procedures Governing Siting and Maintenance of Amateur Radio Antennas and Support Structures, and Amendment of Section 97.15 of the Commission’s Rules Governing the Amateur Radio Service, Memorandum Opinion and Order, 17 FCC Rcd 333 (2001), aff'g Order on Reconsideration, 15 FCC Rcd 22151 (WTB 2000), aff'g Order, 14 FCC Rcd 19413 (WTB 1999), recon. dismissed, 17 FCC Rcd 19408 (WTB PSPWD 2002)

Expiration of covenants?

What governs if such covenants expire? I was just reading an article in a UK newspaper that a restrictive covenant placed by the original seller of the deed from 1936 was enforced recently to prevent property development on land.188.222.10.100 (talk) —Preceding undated comment added 10:35, 22 December 2011 (UTC).[reply]

[1] Federal Preemption of State and Local Regulations Pertaining to Amateur Radio Facilities, Memorandum Opinion and Order, FCC 85-506, 101 FCC 2d 952 (1985)

[2] Modification and Clarification of Policies and Procedures Governing Siting and Maintenance of Amateur Radio Antennas and Support Structures, and Amendment of Section 97.15 of the Commission’s Rules Governing the Amateur Radio Service, Order, FCC 99-2569, 14 FCC Rcd 19413 (1999)

[3] Modification and Clarification of Policies and Procedures Governing Siting and Maintenance of Amateur Radio Antenna and Support Structures, and Amendment of Section 97.15 of the Commission’s Rules Governing the Amateur Radio Service, Order on Reconsideration, RM 8763, 15 FCC Rcd 22151 (2000)

[4] Modification and Clarification of Policies and Procedures Governing Siting and Maintenance of Amateur Radio Antennas and Support Structures, and Amendment of Section 97.15 of the Commission’s Rules Governing the Amateur Radio Service, Memorandum Opinion and Order, 17 FCC Rcd 333 (2001), aff'g Order on Reconsideration, 15 FCC Rcd 22151 (WTB 2000), aff'g Order, 14 FCC Rcd 19413 (WTB 1999), recon. dismissed, 17 FCC Rcd 19408 (WTB PSPWD 2002)

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