How do you get around a restrictive covenant?

A 1954 covenant isn't automatically enforceable just because it exists. The first thing to find out is who holds the right to enforce it. Older restrictive covenants often have no active enforcing party anymore, especially if the original developer is long gone and no HOA was ever formed. If nobody has legal standing to enforce it, it may be unenforceable in practice even if it's still on the title. If it is enforceable, your options are a quiet title action through the courts to have it removed, or getting written consent from all neighboring property owners who benefit from the covenant. In high-density suburban areas where ADUs are increasingly common and even encouraged by local zoning law, courts have shown more willingness to void outdated covenants that conflict with current public policy. Several states have also passed legislation in recent years that limits the enforceability of covenants that restrict ADUs outright. A real estate attorney who handles land use is the right call here, not a general contractor or a zoning board visit first. They can read the covenant, trace who can enforce it, and tell you the fastest path forward. This is one of those situations where an hour of legal advice upfront saves months of going in the wrong direction.

This is a great question, and it’s a situation that can be confusing because it involves two different types of restrictions — zoning laws and private covenants. Even if your city allows ADUs, a restrictive covenant is a private agreement tied to the property and can still prohibit things like secondary dwellings. Unfortunately, a zoning variance would not override a private covenant, which is a common misconception. The next step is usually to review the exact language of the covenant, because some older covenants: • Have expiration dates • Include provisions for amendment • May no longer be actively enforced If the covenant is still valid, removing or modifying it typically requires agreement from other property owners within the subdivision, which can be a more involved process. In some cases, property owners consult a real estate attorney to: • Interpret the enforceability of the restriction • Determine if it can be challenged • Explore amendment options I would recommend starting with a review of the covenant language and then consulting with a local real estate attorney who can advise you on what’s feasible in your specific situation. You’re asking the right question — this is definitely something to clarify before moving forward with building plans.

You typically can’t just “get around” a restrictive covenant, since it runs with the land and can be enforced by whoever benefits from it. That said, a covenant from 1954 isn’t automatically a deal breaker.. First step is to verify whether it’s even still enforceable—things like who has the right to enforce it, whether it was properly maintained, and whether it’s become obsolete due to changes in the neighborhood all matter. If it is enforceable, options may include: • Getting a release or amendment from the parties who benefit from the covenant (often neighboring owners) • Checking if local zoning laws now conflict with the restriction (in some cases, that can weaken it) • Pursuing a legal challenge based on changed conditions or lack of enforcement over time Bottom line: it’s a title/real estate attorney conversation. I’ve seen older restrictions like that become non-issues, but you need to dig into the specifics before assuming you’re stuck.

It varies from county to county. You will need to visit your local city development department.