Thursday, February 16, 2023 / by Amy Brown
Covenants and restrictions in North Carolina do not always pertain to homes located within a homeowners’ association. This is a concept that is very different from some other states. While we have HOA covenants that govern select subdivisions, we also have restrictions that “run with the deed” on single parcels put in place by previous sellers or developers with the intention of keeping that parcel in a specified state for a certain period of time. An HOA or deed restriction can never supersede North Carolina state law or federal law but it does supersede all else.
Here is the hierarchy of prevailing law in North Carolina:
HOA or deed covenants
Articles of incorporation
Rules and regulations
Most subdivisions are governed by a homeowners’ association who hold certain restrictions in place for the land and dwellings within its borders. Secondly, they will have a set of rules and regulations that must be abided by. HOA covenants and restrictions are a legal document, filed with the county courthouse, with an assigned deed book and page. At closing, you will initial a copy of this document acknowledging receipt, understanding, and agreement to abide.
If you are purchasing a property that is either a condo or townhouse or new construction, then you will sign an additional form called an Owner’s Association Disclosure.
This form identifies who the HOA is managed by, where to remit payments, contact information, and what community features you can expect your fees to cover.
A restriction that “runs with the deed” is generally not as complex, but it can be. This is usually put in place by a family who is selling a portion of a larger parcel of family land where they choose to remain on the adjacent parcel. Restrictions such as these are: no modular or manufactured homes, livestock restrictions, or access requirements. This restriction will supersede any designated zoning regulation.
There are a few ways to have a restriction removed, the easiest being to draft a document releasing the restriction, have both parties sign in agreement, and file with the courts. The second way is to wait until the specified term expires or under the Real Property Marketable Title Act it can be extinguished after a 30 year period, if applicable. The third way is to have the court declare that the property has substantially changed in condition and character causing enforcement of the restriction to be unjust and inequitable.
Common restrictions that can be troublesome for buyers wanting to purchase in NC are limited or no parking of RVs or boats, limits on size, number, and type of pets, landscaping minimums, types of fencing, and prohibiting micro-livestock such as chickens and goats.