By John Hopewell
Certain Title & Escrow LLC

When purchasing property, the ability to control what your neighbor can do with his property is something most homeowners consider important.

This desire continues over the life of the ownership of the property. NIMBY - Not In My Back Yard - probably drives most opposition to new development activity in planning and zoning offices across the country.

Apart from zoning ordinances and regulations which are public limitations on the character and use of property, landowners are usually free to privately restrict the uses of their property through the implementation of what are referred to as building restrictions.

Broad Paramaters
Louisiana law allows the use of restrictive covenants by owners within some very broad parameters. While not being given absolute discretion to restrict use, landowners can avail themselves of the law that controls use by imposing building standards, and specifying uses and improvements upon property.

The law requires that the restrictions be “…feasible and capable of being preserved.” These building restrictions must be established by the affirmative express act of the owners of the property and must be a part of a general development plan to avoid the risk that their application and enforcement will not be prevented.

The restrictions themselves may include both negative and positive covenants. For instance, restraints on the use of property are allowed as well as required uses of property. A restrictive plan may also include an obligation to do something. For example, association dues may be a part of building restrictions. Affirmative duties that are imposed such as dues must be “…reasonable and necessary for the maintenance of the general plan” of the development.

Residential and Commercial
Most people are aware that building restrictions may be imposed on residential property but the legal framework for restrictive covenants applies to commercial development as well. It can also be a mix of the two.

The method of enforcement of building restrictions is usually governed by the restrictions themselves. Individual landowners may be the party to bring an action to enforce a restriction, or if an association of landowners is contemplated, the ability to enforce restrictions may very well be given to it to enforce a restriction or prevent a potential violation. Not all restrictions are enforced in the same manner.

Once created, restrictions may be amended and they may be terminated. The method for change or termination may be a part of the restrictions themselves but if silent, the law in Louisiana makes use of the application of certain criteria. Generally, with an amendment or termination, the law requires either more than one-half or two-thirds of the owners of the property to agree to any change, depending upon how long the restrictions have been in effect.

Failure to Enforce
A failure to enforce a noticeable restrictive covenant may free one property and possibly the entire development from such restriction. Whenever an action to enforce a restriction is discussed, the focus must be on whether the non-enforcement was only on a certain lot or was it a general abandonment of that restriction for the whole of the development. Generally, there is a two year window to bring an action for a noticeable violation of a restriction. Whenever the existence or validity of a restriction comes into question, the burden of proving such restriction is usually on the person seeking to enforce it.

All in all, building restrictions allow the owners of property to reasonably control the use of their property even after their actual ownership ceases. Within certain limits, the satisfaction of knowing what your neighbor can do with his property becomes a positive aspect of ownership and should not be viewed only as a limitation of your use.

This article is designed to give the reader general information concerning the imposition of building restrictions on property. The specific advice of competent real estate counsel upon consultation is always advised whenever the limitations on the use of property is discussed.

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