Check Public Records For Covenants That Run With The Land

When you buy a home, your real estate attorney must always do a review and check of the public records. The reason is to make certain that “title” is clean and unencumbered; it’s important to know whether the person selling you the property actually has the legal right to sell it to you, and to make sure there isn’t some error in the chain of title that could affect your ability to purchase the home and there are no claims or liens attached to the property.

But there’s another reason why your real estate attorney might check the public records: to make sure there are no covenants that run with the land.

What is a Covenant That Runs With the Land?

A covenant that runs with the land is a promise, condition or agreement that all purchasers who buy a house or property, automatically are assumed to agree to. That’s right – even if you didn’t expressly agree to the covenant, because the covenant runs with the land, you are presumed to have known about, and agreed to, that covenant.

Covenants that run with the land are generally those things that may affect your use or enjoyment or the value of the land. Examples may be homeowner’s association rules—you know that you don’t have to expressly agree to them when you buy a  home; the mere fact you are buying a home subject to association rules, is your consenting to those rules.

The same is true of easements, particularly for utilities and government usage. Zoning restrictions may also be covenants that run with the land. Developers or homeowners associations or governments that need to make sure that property is used a certain way, or that access is provided throughout time, will often record covenants that run with the land.

Checking the Records

So how can you be bound by something you didn’t know about or agree to? That’s where the public records search comes in—all covenants that run with the land are supposed to be filed in the public records. A record search will reveal which covenants are there, and what they say, so that you can buy the home, or reject buying the home, if you don’t want to be subject to those covenants.

Difference Between Personal Covenants

Note that covenants that run with the land are different from personal covenants, which are just between the buyer and seller. For example, an agreement to sell property furnished, or a post occupancy agreement or some agreement for the Seller to provide money to make additional improvements, all are personal covenants or agreements, that don’t attach to, or run with the land.

To make a covenant run with the land, more than just filing in the public records is needed. The agreement must specifically say, or show an intent, to run with the land.

Call the West Palm Beach real estate lawyers at The Law Offices of Larry E. Bray today for help with your real estate closing and to avoid any unwanted or unexpected surprises.

Sources:

law.cornell.edu/wex/covenant_that_runs_with_the_land

miamidade.gov/environment/library/forms/rbca-standard-covenant.pdf