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A Primer on Covenants, Conditions, and Restrictions (CC&Rs)

by Sarah Richardson, Associate Broker, Story Real Estate

More often than not, property buyers on the Kenai Peninsula encounter land that is governed by Covenants, Conditions, and Restrictions (CC&Rs). In this post, we’ll explore how they are created, who governs them, how they are enforced and changed, and what risks are in store if broken.

What exactly are CC&Rs?

CC&Rs, which stands for Covenants, Conditions, and Restrictions, are a formal set of rules and regulations that govern certain housing developments and subdivisions. On the Kenai Peninsula, these rules are typically established by property developers and define certain standards and guidelines that property owners in a subdivision must adhere to. Basically, they are the rules of the subdivision.

In my practice, I come across CC&Rs that govern things like building height in a subdivision with a big view, temporary structures such as trailers and tents in newer subdivisions (nobody wants to move into a shiny new house and look out at a tent camp), and roofing materials (reflective roofs are often banned for obvious reasons). I’ve come across CC&Rs that say if owners have a dog, then they need to have a certain sized dog run with an insulated dog house. Also, some that expressly ban grey window frames.

All that said, the whole point of CC&Rs is to protect property values, help neighbors live peacefully, and protect the financial interests of homeowners. 

Keep in mind that these are not the same as a homeowners association (HOA) which is an organized group of people running a not-for-profit whose purpose is to maintain the assets of a community. In Homer, for example, we see HOAs in Streamhill Park where the association manages the collective assets of its members, and in some little subdivisions where groups of homeowners maintain the roadway.

How do I know if a property has them?

CC&Rs typically show up in a title report when you purchase a property. Oftentimes they are part of an original MLS listing that your Realtor would have sent you when you were first interested in the property. A quick call to your favorite Realtor is often all that’s needed to confirm whether a property has CC&Rs.

How are CC&Rs Formed?

CC&Rs are typically created at the inception of a subdivision or housing development by the property developer. Remember, that the goal is to create a cohesive and appealing community that benefits all residents and maintains property values — a case can also be made that they can create some cachet or make it more marketable to future homeowners.

Depending on the subdivision, CC&Rs can be new, or they can be very old with multiple amendments and revisions that have been recorded over the years. My favorite is a subdivision in Homer that has an amendment that allows one specific resident to have one specific horse.

Do CC&Rs Ever Expire?

Some CC&Rs have an expiration date stated in the original agreement. I’ve seen them in effect for 25 years or even as few as 10 years. However, most have language that keeps them in effect perpetually or automatically extends them once the original term (usually 25 years) has expired.  

In states such as Florida, CC&Rs with no expiry automatically terminate after 30 years. Alaska has no such rule meaning that covenants with no expiry run with the land and can be enforceable decades after they took effect. 

How are CC&Rs Enforced?

I was recently showing a house to a couple who really wanted a flock of backyard chickens. The house wasn’t in a large subdivision, the lot size was relatively big, and the neighbors seemed like the homestead types, so my clients thought it would be no problem. The only trouble was, the CC&Rs banned all livestock, including chickens. What to do?

In reviewing the CC&R document, we saw that there was no active HOA. That means that anyone in that subdivision who is subject to the same CC&Rs could object to chickens and take legal action to have these clients get rid of their flock. It seemed unlikely that neighbors in this subdivision would object — however, it would be expensive to be wrong given that a prevailing party in a court case would likely be awarded court and attorney costs if the neighbors were to challenge a CC&R violation in court.

Some older covenants have architectural review committees comprised of long-deceased people. This does NOT void the CC&Rs or make them unenforceable, the rules in the CC&Rs would remain in effect.

When can CC&Rs not be Enforced?

A CC&R cannot be enforced if it violates federal or state laws (for example fair housing laws) or if it’s enforced selectively or inconsistently (more on that below).

In the example about the chickens, if my clients and I had walked the neighborhood and discovered that half the neighbors in the subdivision had chickens in their yard, then a strong case could be made that the covenant has been abandoned and is therefore unenforceable. A quick call to legal counsel would then be added to our list of due diligence steps during our inspection period.

I’ve seen some CC&Rs that restrict hanging laundry out on a clothesline to dry. Several states have enacted ‘right to dry’ laws that prohibit bans on clotheslines and drying clothes outside. A long Google search did not show that Alaska has signed onto the ‘right to dry’ ban. 

How do Buyers do Good Due Diligence?

Good due diligence involves taking a close read of the covenant document that is either on the listing or provided in a title report. Remember with a title report, buyers often have three days to review the document and submit any questions or objections. So it’s important to review them as soon as you receive the document. Sometimes questions are best handled by a real estate lawyer and your Realtor should have a good one in their contacts. Don’t ever skip reading these as they are considered a contract that you’ve entered into.

How can CC&Rs be Changed?

When CC&Rs are established, they often contain language about how to amend or change them. Kelly Ranch up on the Homer Bluff is clear about how CC&Rs can be amended (in this subdivision, ⅔ of property owners need to sign and record a legal document outlining and agreeing to the change).

Last year I represented a seller in the Ridgewood Estates subdivision who purchased land from a friend. That friend had subdivided the land without consulting the CC&Rs and when we went to sell, we found out the property was in clear violation. That violation was flagged by lenders and noted by a few buyers. So what did we do? Since the CC&Rs contained instructions on how to change them, we set out to follow them and contacted the neighbors. They understood what was happening and graciously agreed to make a covenant change that was applicable to only that one lot. We had a lawyer draw up an amendment to the CC&Rs and had it signed by the neighbors and recorded. 

Not only did this benefit my client (he sold his lot without that liability), but it also signaled to owners and future buyers that the neighborhood does care about and enforce the covenants and that no case can be made for their abandonment in the future.

What Takes Precedent, Zoning, or Covenants?

Zoning are municipal or local laws that govern how a parcel of real property can and cannot be used in certain geographic areas. In Homer, zoning codes are created and enforced by the city (For Homer, see zoning map and zoning codes).

For a property that is subject to both CC&Rs and Zoning laws, we look to see which of the two is more restrictive. If zoning permits a certain activity (like owning backyard chickens) but the covenants forbid that use, then the covenant would rule because it is the most restrictive. On the other hand, if the zoning ordinance is more restrictive than the covenants, the zoning ordinance rules.

What if the Covenants aren’t being followed?

One should be completely certain before ignoring or violating a CC&R, otherwise, you could face expensive legal action. If a deed restriction isn’t being followed you can do one of three things: you can choose to ignore it and take on the risk of a neighbor filing suit or you can petition the neighborhood and have the covenant changed.

Noah Mery of Dolifka & Associates notes that “if a neighbor does bring about legal action and if the offending property owner has been engaged in the offending activity on the property for many years, and/or other property owners are and have been engaging in the same activity, there are various legal defenses available to the violator that could result in a judge deciding that the covenant is no longer enforceable against them.”

I’ve heard many people shrug their shoulders at CC&Rs, noting that they have obviously been abandoned by a neighborhood. Indeed one could argue that CC&Rs have been abandoned if there has been a lengthy and blatant absence of any kind of enforcement or if there has been a significant change in the circumstances of the community. The smartest thing to do is to seek legal counsel before making the assumption that covenants are abandoned. Your Realtor should be able to get you in touch with a good one.

Multi-family Housing

Lastly,  we’re seeing a serious need for more multi-family homes in Homer. While city or borough zoning in a neighborhood may allow for duplexes and triplexes, CC&Rs often don’t. Being more restrictive, CC&Rs prevail. I imagine that builders will be looking to neighborhoods with abandoned or unenforced covenants for multi-family housing projects and that Realtors with deep knowledge of CC&Rs will be worth their weight when helping property owners and developers navigate Homer’s new reality.

Questions about CCC&Rs in Alaska? Reach out to me at (907) 299-5909 or send an email

Noah Mery can be reached at Dolifka & Associates at (907) 262-2910.

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