Real Estate Covenants – Express & ImpliedBY ADAM DOLL | HOPKINS & HUEBNER, P.C. | ADEL OFFICE

Written restrictive covenants spell out certain uses of property that owners of real estate are not allowed to maintain.  Restrictive covenants can prohibit items such as building houses below a certain square footage, vinyl siding, or even prohibiting the keeping of certain animals (i.e. chickens) on the land.  These restrictive covenants are known as express covenants.  They are written and recorded in the county records.  Anyone that purchases a piece of property that the covenants apply to can be forced to abide by these written rules.  There is no question under Iowa law that express covenants are legally enforceable if written, recorded and maintained properly.  But are there any other covenants that can be enforced?  Yes!  Iowa recognizes that there also may be implied covenants on real estate.  Implied covenants differ from express covenants in that they are not formally written and recorded in the county records.  Implied covenants arise through the actions, promises and statements of a land developer, coupled with the reasonable expectations of the purchasers of such land.  Implied covenants can prevent land from being developed or used in a fashion that is contradictory to the original intended use of the land.   

Examples of when implied covenants may arise are when land is sold based on the premise that other land (oftentimes adjacent) is to be kept to a certain use, such as a park, golf course, or other recreation type area.  Facts vitally important in proving the existence of an implied covenant  usually includes items such as the intent of the developer, whether there was a common scheme of development, advertisements, if the park/golf course/open area was shown on any plats or surveys, if purchasers of the surrounding land reasonably relied on the park/golf course/open area remaining in such use.  

The existence of an implied covenant can prevent the “rug from being pulled out” from under homeowners.  Consider a new residential development in which the plats and advertising material show a large park in the middle of the development.  After all lots are sold, there is a proposal to now do away with the park and develop the park into more residential lots.  Depending on the exact facts, the doctrine of implied covenants may prevent the development of the park and preserve the homeowners’ reasonable expectations that a park would remain in existence.  

Whether express or implied, real estate covenants in Iowa are enforceable and should be considered carefully. Both types of covenants are in place to protect land owners and the integrity of the original intended use of the land. If any issues arise concerning real estate covenants, a qualified attorney should be consulted.