Not all restrictions on the use of land are imposed by government bodies. Certain restrictions to control and to maintain the desirable quality and character of a property or subdivision may be created by private entities, including the property owners themselves.
These restrictions are separate from and in addition to the land-use controls exercised by the government. However, no private restriction can violate a local, state, or federal law.
Covenants, Conditions, and Restrictions (CC&Rs)
These are private rules set up by the developer that set standards for all the parcels within the defined subdivision. CC&Rs are enforced by the homeowners’ association.
Unlike most deed restrictions, many CC&Rs have time limitations; for example, a restriction might state that it is “effective for a period of 25 years from this date.” After this time, it becomes inoperative or it may be extended if approved by the required number of owners. Many developers also include methods by which a required number of homeowners may change a CC&R.
Restrictive covenants are usually considered valid if they are reasonable restraints that benefit all property owners in the subdivision; that is, they protect property values or safety. Restrictive covenants cannot be used for illegal purposes, such as for the exclusion of members of certain races, nationalities, or religions.
Private land use controls may be more restrictive of an owner’s use than the local zoning ordinances. The rule is that the more restrictive of the two takes precedence.
Private restrictions can be enforced in court when one lot owner applies to the court for an injunction to prevent a neighboring lot owner from violating the recorded restrictions. If adjoining lot owners stand idly by while a violation is committed, they can lose the right to an injunction by their inaction. The court might claim their right was lost through laches that is, the legal principle that a right may be lost through undue delay or failure to assert it.
In Illinois, any restrictive covenant that forbids or restricts conveyance, encumbrance, occupancy, or lease on the basis of race, color, religion, or national origin is void. Exceptions to this section of the Illinois Human Rights Act are allowed for religious and charitable organizations.
