Restrictive Covenants in Common Elements Condos

There was recently an interesting decision by the Superior Court of Justice regarding the enforcement of two sets of restrictive covenants in a common elements condominium. A restrictive covenant is a legal obligation registered on title to land and runs with title (meaning it binds future owners). A restrictive covenant prohibits certain conduct, such as installing a fence, affixing decorations, or permitting a certain number of persons to reside at the property.

The condominium commenced an application against the owners of one of the parcels of tied land for compliance with a restrictive covenant, which prohibited the owners from installing any fence other than a four-foot wrought iron fence. The owners installed a seven-foot high wooden fence. The owners argued that the restrictive covenants registered in 2006, which did not prohibit the type of fence they installed, were the ones that should be enforced. The condominium suggested it was the previous restrictive covenants registered in 2004. The parties agreed that the owners were in compliance with the 2006 covenants, but not the 2004 covenants. The judge held that the condominium could only enforce the least restrictive covenants to the extent of any inconsistency between the two sets. Since the owners were in compliance with the 2006 restrictive covenants, the condominium could not demand the removal of the fence.

The case is not unique in the analysis of the restrictive covenants or the result, but the judge had several warnings for condominiums looking to enforce against owners.

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