CC&Rs on Title: The Recorded Rules That Run With the Land

Somewhere in the exceptions on your Claremont preliminary report is a line referencing a declaration recorded decades ago, by people you have never met, that you are nonetheless bound by. That is the defining feature of recorded covenants, conditions and restrictions. They RUN WITH THE LAND.

You did not agree to them at a table. You agreed to them by acquiring the property, and your buyer will agree to them the same way when you sell.

How they get onto the land

A declaration is recorded by whoever controls the land at the time, usually a subdivider, and it applies to the parcels described in it. From that recording forward, every owner in the described area takes subject to it, whether or not they read it.

This is a different mechanism from a contract. A contract binds the parties who signed it. A properly created covenant that runs with the land binds successors, which is exactly why it works as a planning tool and exactly why it can outlive its own usefulness.

Claremont has covenants of several vintages layered across the city: mid-century tract declarations, condominium and planned development declarations governing common interest communities, and older instruments attached to land subdivided out of agricultural holdings. Two adjacent streets can be governed very differently.

Association-governed versus not

This distinction determines how the rules actually feel to live under, and buyers regularly miss it.

Where there is an ASSOCIATION, the declaration creates a governing body with the power to interpret and enforce the rules, levy assessments, and in many cases approve or refuse architectural changes. That regime is regulated by California's common interest development statutes, and unpaid assessments can become a recorded lien, described in the HOA lien guide.

Where there is NO association, the covenants still exist and still bind, but enforcement falls to the other owners in the tract who benefit from them. There is no board, no dues, and no architectural committee, which sounds freer and is, until a neighbor decides to enforce a setback restriction against your addition. Restrictions with no active enforcer are often ignored for years and then suddenly are not.

Reading them properly

Your preliminary report will cite the declaration by recording reference rather than reproducing it. Get the actual document. This is the single most skipped step in a Claremont purchase, and the report-reading method that surfaces it is in the preliminary report guide.

When you have it, look for the provisions with practical bite. Use restrictions, including anything limiting rentals, home businesses, or occupancy. Architectural controls and whether approval is required for exterior work. Setbacks and height limits, which may be stricter than the city's zoning and are enforceable independently of it. Restrictions on outbuildings, which matter enormously if you are considering an accessory dwelling unit. Rules on vehicles, animals, signage, and landscaping. Any right of first refusal.

Then check for AMENDMENTS. A declaration from decades ago has often been amended one or more times, and each amendment is a separately recorded document. Reading only the original can give you a confidently wrong picture.

Enforceability is not automatic

An old covenant existing in the record does not mean it is enforceable today, and this is where the subject becomes genuinely legal rather than merely careful.

Some restrictions are void as a matter of California law regardless of what the paper says, and racially restrictive covenants are the clearest example. They remain physically present in many older Claremont chains and are unenforceable and repugnant; California provides a process for having such language stricken from the record, which is covered in the outdated covenants guide.

Beyond that category, doctrines around abandonment, changed conditions, waiver, and the passage of time can all bear on whether a specific restriction can still be enforced against a specific parcel. Those are fact-intensive legal questions. Nobody, including your agent and including your title officer, should tell you a covenant is dead because it looks old or because the neighbors have ignored it. That opinion comes from a real estate attorney who has read the declaration and the amendments.

Violations, and what title does about them

A standard policy generally takes exception to recorded covenants, meaning the policy does not insure that you can do whatever you like on the land. Certain endorsements may insure against loss from a present violation or from enforcement causing forfeiture or reversion, and what that does and does not achieve is in the endorsements guide.

Note carefully: coverage is not permission. An endorsement addressing loss from a violation does not entitle you to build the thing. If the previous owner enclosed a patio without approval, or built within a covenant setback, that condition is still a violation and the covenant beneficiaries may still have remedies.

That is the buyer's real exposure. You inherit not only the rules but any existing noncompliance, and the seller's disclosure may not mention it because the seller may not know.

What to actually do

If you are buying, obtain the declaration and all amendments during your contingency period, read the use and architectural sections against what you intend to do with the property, and ask specifically whether the property currently complies. If you are buying into an association, request the governing documents, financial disclosures, and minutes.

If you are selling, know what your own declaration says before a buyer asks, and disclose known violations rather than hoping.

And if any of it is unclear, whether a restriction reaches your plans, whether an old covenant is still enforceable, or whether an existing condition is a violation, that is an attorney question. The stakes are the use of your own property, and they are too high for an educated guess.

For the closing sequence generally, see the title and closing guide, and for how these instruments sit in a property's recorded history, see the chain of title guide. Anthony Grynchal has been licensed in California since November 2009.