ARTICLE:
STATUTORY OVERRIDES OF “RESTRICTIVE
COVENANTS” AND OTHER PRIVATE LAND USE
CONTROLS: THE ACCELERATING TREND
TOWARDS LEGISLATIVE OVERWRITING OF
CONTRACTUAL CONTROLS OF THE USE AND
DEVELOPMENT OF REAL PROPERTY
By Karl E. Geier*
The use of private covenants governing the use, improvement, and occupancy
of real property has a long and sometimes checkered history in California, as it
does throughout the nation. Beginning in the late 19
th
century, the prolifera-
tion of larger real estate developments and subdivisions in growing metropoli-
tan areas was accompanied by a proliferation of deed restrictions, restrictive
covenants, and reciprocal covenants or equitable servitudes of various kinds.
Often quite detailed, these recorded instruments typically were imposed by the
developer or subdivider, rather than negotiated with individual purchasers or
governmental agencies. They served to delineate roads, easements, rights of way,
and landscaped areas, parklands, and other amenities and common facilities,
and also to limit and prescribe the size, construction costs, height, setback areas,
design features, uses, and occupancies of individual lots and the residences to be
constructed on those lots.
For the most part, these restrictions were intended to create and define the
neighborhood character and ambiance of the development, which was part of
the product that was being developed and sold in the marketing of the project.
Often, as part of this objective, they contained explicit restrictions on the race
or ethnicity of “permitted” purchasers or occupants of the property. Even if they
were race-neutral on their face, the restrictions often deliberately targeted a par-
ticular socio-economic stratum and price range, and were oriented to a particu-
lar notion of conventional owner-occupant nuclear families and segregation of
single-family uses and rental properties from multi-family or commercial and
industrial uses, similar to the restrictions of Euclidean zoning ordinances that
were also being formulated and enacted by municipal governments in roughly
the same era.
*Karl E. Geier is Shareholder Emeritus of Miller Starr Regalia and Editor-in-Chief of the
firm’s 12-volume treatise , Miller & Starr, Calif ornia Real Est ate 4th, publ ished by Thomson
Reuters.
MILLER & STARR REAL ESTATE NEWSALERTMARCH 2022 | VOL. 32 | ISSUE 4
240 K2022 Thomson Reuters
