To form a property restriction, you draft a written covenant that spells out the limitation, sign it before a notary along with any co-owners, and record it with the county recorder in the county where the land sits. Done correctly, the restriction becomes part of the property’s chain of title and binds every future owner. Done wrong, you end up with an official-looking document that carries no weight against the next buyer, so the details at each step matter.
Confirm You Have the Authority to Restrict the Land
The right to place a restriction on property starts with the title. You can only restrict land you own or have a legally recognized interest in.
A sole owner can place restrictions on their land before selling it. This commonly happens when someone divides a larger parcel into smaller lots and wants to preserve the character of the area by requiring minimum lot sizes or prohibiting certain uses. Developers creating a new subdivision or planned community routinely draft a comprehensive declaration of covenants that applies to every lot, recorded before the first lot is sold so every buyer takes title subject to them. An HOA board can adopt new rules or modify existing restrictions when the community’s governing documents grant that authority and the board follows the required procedures.
If more than one person is on the deed, every co-owner with a recorded interest has to sign. A restriction signed by only one co-owner won’t hold up against the others.
Get Your Lender’s Consent First
If you have an outstanding mortgage, your lender almost certainly needs to approve any new restriction before you record it. Mortgage agreements typically prohibit the borrower from doing anything that could impair the lender’s security interest, and a restriction that limits how the property can be used may reduce its market value, which affects the collateral. Fannie Mae’s lending guidelines, for example, require that any new restrictive covenant be subordinated to the lender’s mortgage lien so the restriction doesn’t interfere with foreclosure rights.1Fannie Mae. Restrictive Covenants and Affordable Regulatory Agreements Adding a restriction without lender consent can trigger a default under your mortgage terms.
The Four Legal Elements Every Restriction Needs
A property restriction is a private covenant, and courts test it against four requirements before letting it bind anyone but the original parties. Missing any of these can be fatal.
It Has to Be in Writing
Every state’s version of the Statute of Frauds requires that agreements creating or transferring interests in real property be documented in writing. A verbal promise between neighbors is unenforceable against a future buyer. The written document is also the only version that can be recorded in public land records.
It Has to Affect the Land Itself
Courts apply the “touch and concern” test: the restriction has to directly affect the use, value, or enjoyment of the land, not just create a personal obligation between two people. A covenant limiting a parcel to residential use passes this test because it shapes how anyone owning that land can use it. A promise to mow your neighbor’s lawn every Saturday does not, because it’s a personal favor with no relationship to how the land functions. A restriction that doesn’t touch the land dies with the original agreement and won’t transfer to the next owner.
It Has to Say It Binds Future Owners
The document needs language stating clearly that the restriction “runs with the land” or binds “successors and assigns.” Without those words, a court may treat the document as a personal contract between the original signers that evaporates the moment the property changes hands. This is one of the most common drafting mistakes in homemade restriction documents.
There Has to Be Privity of Estate
Privity of estate requires a recognized legal relationship between the person creating the restriction and the person bound by it. At its simplest, this means the restriction passes through a property transaction: the original owner places it on the deed, and each subsequent buyer inherits it along with the title. A stranger who never owned or purchased the burdened land generally can’t be forced to comply.
Drafting the Document
The document you’re preparing is typically called a Declaration of Covenants, a Restrictive Covenant Agreement, or simply a deed restriction. Whatever the label, it needs several specific elements to be accepted for recording and to hold up in court.
Legal Description of the Property
Start with the current deed. You need the legal description, which identifies the exact boundaries using surveying language rather than a street address. A mailing address is not precise enough for land records. Most legal descriptions use one of three systems: metes and bounds (measurements and compass directions tracing the boundary lines), lot and block numbers referencing a recorded subdivision plat, or a section-township-range grid used in areas surveyed under the federal system. Copy the legal description from the existing deed exactly as written. Errors here can void the restriction or accidentally apply it to the wrong parcel.
Parties
Identify the grantor (the person imposing the restriction) and the grantee (the person receiving the property subject to the restriction). If the restriction applies to an entire subdivision, the developer is typically the grantor and each lot purchaser is a grantee.
Specific Terms
Spell out the limitations clearly. Vague language like “the property shall be maintained in a manner consistent with the neighborhood” invites disputes because no one can agree on what that means. Effective restrictions name the prohibited or required actions directly: no commercial activity, no structures taller than 35 feet, no more than two outbuildings, only single-family residential use. The more precise the language, the easier the restriction is to enforce.
Duration
State whether the restriction is perpetual or expires after a set period. Terms of 25, 30, or 45 years are common for subdivision covenants, sometimes with an automatic renewal clause unless a majority of lot owners vote to terminate. Perpetual restrictions are common for conservation easements and some architectural standards. If the document is silent on duration, the default varies by jurisdiction, and ambiguity on this point is a frequent source of litigation.
Signing and Recording
Every person signing the restriction has to do so in front of a notary public, who verifies their identity and witnesses the signature. The county recorder’s office will reject documents that aren’t properly notarized. Notarization is a substantive protection, not just a formality, because it guards against someone forging a restriction on property they don’t own.
A restriction that sits in your filing cabinet does nothing. It becomes legally effective against future buyers only when you record it with the county recorder or registrar of deeds in the county where the property is located. Recording creates constructive notice, which means anyone who later searches the title will find the restriction, and courts will treat them as if they knew about it whether they actually looked or not.
Most counties accept documents in person. Many also allow mailing, and a growing number offer electronic recording portals. Whichever method you use, the document has to meet local formatting requirements for page size, margins, font legibility, and return address placement. Requirements vary by county, and the recorder’s office will reject documents that don’t comply, so check your county’s specifications before submitting.
Recording fees vary by jurisdiction but generally run between $10 and $60, depending on page count and any local surcharges for technology or preservation funds. Once the recorder processes your document, it receives a unique instrument number or a book-and-page designation that indexes it in the public title database. That indexing completes the process. From that point forward, the restriction is part of the property’s chain of title and transfers automatically with every sale.
What It Costs
If you’re creating a simple restriction on a single parcel and you’re comfortable working from a template or form obtained from your county recorder’s office, your main costs are the notary fee (typically under $25) and the recording fee. For a straightforward document, total costs might be under $100.
Hiring a real estate attorney to draft a custom restriction or a full declaration of covenants is a different matter. Professional drafting fees generally fall between $500 and $5,000, depending on the complexity of the restrictions, the number of parcels involved, and the local market for legal services. A single-lot restriction limiting use to residential purposes sits at the low end. A comprehensive declaration for a 200-lot subdivision with architectural review provisions, enforcement mechanisms, and amendment procedures sits at the high end. A poorly drafted restriction can be challenged and thrown out, so for anything beyond the most basic covenant, the legal fee is usually money well spent.
Restrictions That Won’t Hold Up
Not every restriction a property owner writes down can be enforced, even if it’s properly drafted and recorded. Federal and state laws override private covenants in several areas, and any restriction that conflicts with these laws is void regardless of what the document says. Build your restrictions around permitted activities, not around categories the law protects.
Discriminatory Restrictions
The Fair Housing Act makes it illegal to discriminate in the sale, rental, or terms of housing based on race, color, religion, sex, national origin, familial status, or disability.2Office of the Law Revision Counsel. 42 USC 3604 – Discrimination in the Sale or Rental of Housing and Other Prohibited Practices A restrictive covenant that limits who can buy or occupy property based on any of these categories is unenforceable. The Supreme Court ruled as early as 1948, in Shelley v. Kraemer, that courts cannot enforce racially restrictive covenants because doing so constitutes state action violating the Fourteenth Amendment’s Equal Protection Clause.3Justia US Supreme Court. Shelley v Kraemer, 334 US 1 (1948)
Flags, Antennas, and Solar Panels
Several federal laws directly preempt common types of HOA and deed restrictions:
- The Freedom to Display the American Flag Act of 2005 prohibits any condominium association, cooperative, or residential management association from restricting a member’s right to display the U.S. flag on property the member owns or has exclusive use of. The law does allow reasonable rules about the time, place, and manner of display.4GovInfo. Freedom to Display the American Flag Act of 2005
- The FCC’s Over-the-Air Reception Devices (OTARD) rule prevents restrictions that unreasonably delay installation, increase the cost, or prevent reception of an acceptable signal from satellite dishes one meter or smaller and certain TV antennas. The rule applies to property where you have an ownership interest or exclusive use. Violations can result in fines exceeding $25,000 per occurrence.5Federal Communications Commission. Over-the-Air Reception Devices Rule
- Roughly 25 to 30 states have laws limiting an HOA’s ability to prohibit or unreasonably restrict solar energy systems. These laws generally allow associations to impose reasonable placement guidelines but not outright bans, and they typically define “reasonable” as not significantly increasing installation costs or reducing the system’s efficiency.
Running afoul of any of these laws doesn’t just make the offending clause unenforceable; it can expose the party trying to enforce it to legal liability.