Long before municipal zoning by-laws existed, restrictive covenants were used as an effective community planning tool. If Susan owned a large parcel of land and sold a piece to Jason, Susan may have required that Jason promise not to use the land for industry, and they would have entered into a contract. The courts later recognized that this restriction on how Jason could use the land did not apply only to Jason, but it applied to anyone after Jason, such as subsequent owners of the affected land or any future transferees. Essentially, the courts recognized the doctrine that both the benefit and the burden of that restrictive covenant (the land cannot be used for industry) between Susan and Jason would run with the land.
A restrictive covenant is simply a contract between two neighbouring landowners. In a restrictive covenant, 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 neighbouring land to certain specified uses.
One of the most important requirements of a restrictive covenant is that it must be negative in nature. For example, 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. After all, a restrictive covenant must be restrictive, as its name implies. 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 typically present in most new housing subdivisions under the building scheme. They affect every lot in a subdivision, and are actually a private scheme of town planning. All the parties living in that subdivision possess a common interest to preserve the character and value of all the land in the subdivision. In certain subdivisions, one cannot plant a particular tree on one's property because of the tendency of that particular tree to seek out moisture and eventually grow into a neighbour's basement.
It is important to remember that all restrictive covenants affecting your property 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.
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