Can I paint my house bright pink?

Before municipal zoning by-laws existed, restrictive covenants were used to control development. If

Susan owned a large parcel of land and sold a piece to Jason, Susan may have required that Jason promise in a contract not to use the land for industry. The courts later recognized that this restriction did not apply only to Jason, but to anyone after Jason, such as subsequent owners of the land. The courts recognized the doctrine that both the benefit and the burden of that restrictive covenant (not using the land for industry) between Susan and Jason would “run with the land”.

 

A restrictive covenant is simply a contract between two landowners. The landowner who obtains the benefit under this contract is called the Covenantee, who is anxious to maintain the saleable value of the property. The Covenantee acquires the right to restrain the Covenantor, the landowner who assumes the burden of the promise, from putting the burdened land to certain specified uses.

 

One of the most important requirements of a restrictive covenant is that it must be negative in nature. A positive requirement, such as you must paint your house bright pink, would typically not be enforced by the courts because the courts will not force you to do a certain thing with your land; however, a covenant that you will not paint your house bright pink may be enforceable. It can’t just sound restrictive, it must actually be restrictive.  If you can comply with the restriction by not doing anything, but if you do something it must be done in a certain way, the restriction is likely restrictive.

 

Restrictive covenants are also present in most new subdivisions. They affect every lot in development.

Everyone owning land in that subdivision possesses a common interest to preserve the character and value of all the land in the subdivision.

 

Unless you actually sign the contract yourself, all restrictive covenants would be found on title to your property. Ask your lawyer about any restrictive covenants that may be affecting your property before you decide to purchase a home, or paint your current home bright pink.

Matthew Wilson, Real Estate Lawyer, Siskinds