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Restrictive Covenants

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Restrictive covenants are negative conditions put on one of the parties to the contract with a lesser bargaining chip to carry out or not perform vital tasks. Earlier, discriminatory restrictive covenants increased across the United States. Restrictive covenants that discriminate against people of color were created with that goal in mind. These covenants still exist on some properties, even if they are illegal and unenforceable. These covenants have now extended themselves to employment contracts as well. This blog delves into the various areas where restrictive covenants can be found and the various types of such covenants.

Types of Restrictive Covenants

There are various types of restrictive covenants. Some of them are mentioned below:

  • Non-Poaching: Restrictive covenants include non-poaching restrictions. They are used to protect businesses from contractors, employees, and business buyers who are hiring or contracting with former employees, consultants, or contractors who are still working with the protected company after the engagement is over. This is known as the post-termination of the employment or consulting agreement.
  • Non-Solicitation: By forbidding an employee or former employee from doing business with or soliciting other employees or clients of the employer, non-solicitation safeguards the employer's interests. As a result, the business or the employer can stop the loss of workers or clients. Such provisions typically specify the time during which they remain in effect.
  • Non-Competition: Such clauses in an employment contract forbid an employee from working for a rival company or organization. This is done to ensure the employee won't use the resources created by the previous employee to expand a rival company. These limitations may be total or merely partial. It is typically noted that employment contracts include a non-competition clause that lasts longer than the employment itself.
  • Non-Disclosure: Confidentiality clauses or non-disclosure agreements are essential to every organization in the age of technological innovation when intangible assets like intellectual property are the lifeblood of the enterprise. Any information acquired or documents provided to a person throughout the connection that are per se confidential, such as agreements, due diligence reports, or client lists, cannot be used by that person. A person like that might be forbidden from sharing such private information.
  • Garden Leave: According to the garden leave clause, an employee who takes a set amount of time off gets compensated during that time. This ensures that the person is removed from the workplace while preventing them from moving on to work for another company or organization. Garden leave is available once employment has ended, whether due to an employee's resignation or an employer's termination of services. Typically, senior management personnel's executive job contracts have such stipulations.

Considerations for Real Estate from Restrictive Covenants

Although restrictive covenants have a major and substantial impact on a property's use and value, they are frequently disregarded or only considered after the due diligence process before purchase in the real estate sector. Several restrictive covenants may govern how one uses their home and property.

  • Limited Property Usage: Regarding a person's land use, restrictive covenants may be more stringent than zoning laws. Limitations on clotheslines, gardens, swimming pools, and outdoor storage facilities on the land are just a few of the potential restrictions. Working remotely for an employer should be acceptable, but offering services and demanding clients come home can be illegal. Generally, loud noises are prohibited after a specific hour. Campers, watercraft, and RVs may not be allowed to be stored in planned communities. Additionally, overnight parking for vehicles usually takes place in the garage or driveway. Commercial and political signs might not be permitted.
  • Maintenance: It is typical for neighborhood association contracts to specify the upkeep standards for "separate interests" and common areas. Communities aim to maintain a particular aesthetic and level of curb appeal. For example, restrictive covenants might prevent deviations when fixing or replacing things like awnings, decks, fixtures, sidewalks, fence height, landscaping, and gardens. For instance, if the covenants only accept neutral tones, one could have to restore any dead grass and shrubbery or be prohibited from repainting the house. Property upgrades may need to undergo an architectural assessment to ascertain whether the proposed changes in material and appearance are compliant.
  • Property Setbacks: One should confirm that all present and prospective structures and improvements i.e., the area between the rental property and the property lines—are constructed within the prescribed setbacks. If one party plants a fence or tree too close to the property line, these obstacles minimize potential problems with neighbors. Setbacks can also give tenants plenty of space for utilities and other uses around the perimeter of their lot. Non-compliant features may incur fines and need to be moved or eliminated.
  • Pets and Animals: The relevant covenants by the owner of the property may include: a complete ban on the keeping of all or particular pets; a requirement that the landlord or management company (or both) must first give their consent in advance if the occupier wants to maintain a pet. Most covenants on this topic will mention pets, birds, and other household animals. Since the courts frequently use the term "domestic animals," any pet now considered a house pet, including a dog, cat, bird, goldfish, or other tank-dwelling animal, will likely be prosecuted.
  • Tenant Limits: To promote year-round occupancy, an increasing number of towns are banning or restricting the availability of short-term rentals like Airbnb. Some areas prohibit rentals on a long-term basis and restrict the lease to a certain period. The restriction is also imposed on the number of homes that can be used as rentals, as the whole property cannot be rented out all at once.

The existence and impact of restrictive covenants are among the most vital factors to consider when buying real estate. Like beauty, it depends on the individual buyer whether the restrictive covenants are seen as a bonus or a burden. If a restriction is imposed on a property, the buyer should carefully research all the covenants that might affect his interest in buying the property before making any decision.

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Key Terms for Restrictive Covenants

  • Scope of Activities: The covenants spell out all restricted activities or tasks.
  • Reasonableness: The court assesses the justification for enforcing a restrictive covenant to determine whether it should be enforceable.
  • Consideration: Since these covenants are restrictive, a sufficient benefit must be bestowed on the parties agreeing to them.
  • Transferability: When a new party sells or acquires a business or property, the covenants might be transferred to the new entities.
  • Confidentiality Clause: It includes trade secrets, customer lists, and business strategies and binds certain individuals signing it to keep such information secret.

Final Thoughts on Restrictive Covenants

Restrictive covenants are negative conditions put on a party to restrict them from performing certain tasks. It is advised that the party accepting the covenants always confirm whether the relevant state has a governing act that establishes guidelines or presumptions about the enforceability of restrictive covenants for those courts to follow. Review cases that are most factually relevant for information on whether the territorial breadth and duration of the restrictive covenant in question are normally enforceable if the state lacks a governing statute. The usefulness of a choice of law and forum selection clause in connection with the restricted covenant should also be considered.

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