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A Supportive View of Private Development Restrictions

I’m old enough to remember nasty “Restrictive Covenants” which were used in certain fancy neighborhoods to keep out people of certain disfavored racial, religious or ethnic groups. Fortunately, federal legislation outlawed those ugly rules, although as a dirt lawyer, I’ve occasionally found them when digging through an old title.

In that context, I read the recent decision of Division II of the Washington Court of Appeals in an almost refreshing light. In the case of Jensen v. Lake Jane Estates, No. 40947–0–II, decided November 22, 2011, the old specter of discrimination was not even present as the Court reflected on the salutary role that restrictive covenants now seem to play in so many Northwestern residential neighborhoods.

In Jensen v. Lake Jane Estates, the Court discussed rules of construction of restrictive covenants which created a residential homeowners association. The pastoral subdivision in that case surrounds a lake, with parks, a pool and tennis courts. The covenants in question involved the association’s right to require homeowners to obtain the association’s consent before subdividing. A dispute arose over whether a successor in interest to the original developer could exercise the approval rights of the original developer. To answer that question, the Court looked to rules of construction as they apply to restrictive residential covenants.

Residential covenants such as the discriminatory restrictions noted above have been disfavored as mean and against public policy. Also, courts have traditionally viewed such restrictions and other covenants which limit a property owner’s rights narrowly, as a restraint on the free use of land. But the Jensen Court recognized that a shift was taking place, so that courts now largely believe that, “restrictive covenants ‘tend to enhance, not inhibit, the efficient use of land.’ [citations omitted] Similarly, covenants also tend to enhance the value of the land. [citations omitted] Consequently, we strive to interpret restrictive covenants in such a way that protects the homeowners’ collective interests and give effect to the purposes intended by the drafters of those covenants to further the creation and maintenance of the planned community.”

This is a shift. It is very positive that developers are not targeting who can live in a specific area, which is against the law and public policy, but looking to protect the quality and character of what is built and how it is maintained. The fact that the courts are now more respectful of this approach suggests that it is more socially acceptable, and more constructive. To the extent that the use of such covenants is growing, it would also suggest that people are looking at new ways to govern their surroundings rather than looking at their local government to do so. That’s great, in theory. Now about that new fence I want to build and paint purple . . . you don’t think the Homeowners’ Association will have a problem with that . . . do you?

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