Restrictive covenant

Key Takeaways

• A restrictive covenant is a private limit on land use. Because the limit is recorded, every later owner is bound by it.
• A private covenant can be stricter than the zoning code on the same lot, and a rezone does not automatically erase the covenant.
• In Washington, a recorded provision limiting who may buy, occupy, or lease a property by race, sex, disability, or another listed trait is void (RCW 49.60.224).
• Void language does not vanish from the record. An owner clears it by court action or by recording a no-fee modification document (RCW 49.60.227).

What It Means

A restrictive covenant is a private promise about land, written into a Deed or into a subdivision's recorded declaration, that limits what an owner may do with the property. Because the promise is recorded, it runs with the land. It binds whoever owns the lot next, and the owner after that, with no fresh negotiation. Typical covenants cap building height, set a minimum square footage, require design approval before a remodel, bar short-term rentals, or forbid business use inside a residential plat.

Restrictive covenants are private law, not public law. No city or county imposed them, and no city or county enforces them. They are enforced by the people they benefit: the neighbors, the developer, or a homeowners association. The usual remedy is a court order stopping the violation. That makes covenants a title matter. They show up in a title commitment as an Encumbrance, and they sit among the recorded exceptions a buyer has to read before the title contingency runs out. A covenant can be stricter than Zoning on the very same lot, and a later rezone does not automatically wipe it away.

How It Works in Washington

Washington voids the discriminatory ones outright. RCW 49.60.224 is part of the Washington Law Against Discrimination. Under it, a provision in a written instrument relating to real property is void when the provision tries to forbid or restrict the conveyance, encumbrance, occupancy, or lease of that property to people of a specified race, creed, color, sex, national origin, sexual orientation, veteran or military status, or disability. The statute's list is longer still, and it also covers citizenship or immigration status and families with children status. The same section adds a second rule. It is an unfair practice to insert such a provision, and it is an unfair practice to honor one already sitting in the chain of title.

Void is not the same as gone. The language often stays in the record for decades. RCW 49.60.227 gives two ways to clear it. First, the owner, occupant, or tenant, or the homeowners association board, can sue in the superior court of the county where the property sits and have the provision stricken from the public records. Second, the owner can record a restrictive covenant modification document with the county auditor. That document points back to the original instrument. It states that the discriminatory provisions are void and unenforceable under RCW 49.60.224 and federal law. It takes effect on the original instrument's date, and it carries no recording fee.

Example

Nadia goes under contract on a 1948 house in the Wedgwood neighborhood of Seattle for $845,000. The preliminary title commitment lists two recorded restrictions from the original plat: a 25-foot front setback, and a covenant stating the lots shall not be sold, conveyed, or occupied by any person not of the Caucasian race.

The setback is enforceable and real. Nadia's plan for a covered porch 18 feet from the front property line does not clear it, so she redesigns to 26 feet. The racial covenant is void under RCW 49.60.224 the moment it is read, and her escrow officer confirms that no one in the transaction may honor it. After closing, Nadia records a restrictive covenant modification document with the King County recording office. It cites the 1948 plat by recording number, states that the discriminatory language is void and unenforceable, and costs her nothing to record. The setback stays on the title. The racial covenant is struck.

Common Mistakes and Exam Traps

• Restrictive covenants are private and zoning is public. A limit created by a developer or a homeowners association is a covenant question, not a police power question.
• Void and removed are not the same thing. A discriminatory covenant is legally void the day it is written, but the language stays in the recorded document until a court strikes it or an owner records a modification.
• Covenants are enforced by the parties who benefit from them, normally by asking a court to stop the violation. The remedy is not a fine from the city or a criminal charge.
• A single deed restriction from one grantor and a subdivision-wide declaration of covenants, conditions, and restrictions are both restrictive covenants. The number of lots covered does not change the category.