Restrictive Covenant
A privately-imposed limitation on the use of real property, typically arising from a deed restriction or recorded declaration governing a subdivision, planned community, or condominium. Texas restrictive covenants are interpreted under common-law principles supplemented by the Texas Residential Property Owners Protection Act and related statutes. Distinct from employment-context restrictive covenants (noncompete, nonsolicit) covered separately.
Tex. Prop. Code § 202.001 defines a restrictive covenant as any covenant, condition or restriction in a dedicatory instrument, the documents governing a residential subdivision, condominium or similar development. The statute requires liberal construction (§ 202.003(a)), though the Supreme Court of Texas has left open how that fits the common-law rule favoring free use.
A restrictive covenant is a privately-imposed limitation on the use of real property, typically arising from a deed restriction or recorded declaration of covenants, conditions, and restrictions (CC&Rs) governing a subdivision, planned community, or condominium. Restrictive covenants run with the land and bind subsequent owners; they are the principal mechanism through which residential and commercial developments maintain consistent character, design standards, and use limitations over time. The term is also used in the employment context to describe noncompete and nonsolicitation agreements, which are addressed separately.
- Definition
- Any covenant, condition or restriction in a dedicatory instrument (Tex. Prop. Code § 202.001(4))
- Reach
- Chapter 202 applies regardless of when the covenant was created (§ 202.002(a))
- Daily damages
- Court may assess up to $200 for each day of violation (§ 202.004(c))
- Attorney's fees
- Court shall award them to a prevailing party who brought the claim (§ 5.006(a))
- Association decisions
- Presumed reasonable unless arbitrary, capricious or discriminatory (§ 202.004(a))
Creation and enforcement
Restrictive covenants are created by recordation of a written declaration in the real property records of the county where the property is located. They bind the original developer's parcels and all subsequent purchasers in the development. Enforcement is typically through (1) injunctive relief preventing or undoing a covenant violation; (2) declaratory judgment establishing the covenant's meaning; (3) monetary damages for breach; (4) self-help remedies under the declaration. The Texas Residential Property Owners Protection Act provides additional enforcement procedures and protections for residential subdivisions.
Typical content
Common restrictive covenants in residential and commercial developments include: (1) use restrictions, single-family residential only, no commercial activity, no short-term rentals; (2) architectural restrictions, minimum/maximum square footage, exterior materials, color schemes, roofing types; (3) setback and density requirements; (4) landscape requirements; (5) signage restrictions; (6) livestock and animal restrictions; (7) vehicle and parking restrictions; (8) HOA membership and assessment obligations; (9) architectural review committee approval requirements; (10) amendments procedures requiring supermajority votes.
Construction principles
Texas common law historically construed restrictive covenants strictly against the party seeking to enforce them, favoring free use of property, but Section 202.003 requires covenants in dedicatory instruments (residential subdivisions, condominiums and similar developments) to be liberally construed "to give effect to its purposes and intent," whenever the covenant was created (§ 202.002(a)). How the statute fits with the common-law rule is unsettled: the Supreme Court of Texas has noted a split among the courts of appeals and left the question open. Commercial covenants outside a dedicatory instrument fall outside Chapter 202's definition. Ambiguities are typically resolved by reference to the declaration's stated purposes and the surrounding circumstances of its adoption.
Termination and modification
Restrictive covenants can be modified or terminated by (1) compliance with amendment procedures in the declaration (in a residential subdivision with mandatory association membership, § 209.0041 sets the vote at 67 percent of total votes, or a lower figure in the declaration, overriding a higher requirement, with exceptions that include amendments during a development period); (2) expiration of stated term; (3) merger with the dominant estate; (4) abandonment (rarely successful, requires showing of widespread non-compliance evincing community intent to abandon); (5) waiver by repeated non-enforcement of similar violations (estoppel); (6) changed conditions (rarely successful in Texas); (7) judicial action.
Statutory limits
Several types of restrictive-covenant provisions are unenforceable as a matter of Texas statute: (1) discriminatory restrictions based on race, color, national origin, religion (§ 5.026); (2) restrictions on flag display under specified conditions; (3) restrictions on certain solar collectors; (4) restrictions construed to prevent use of property as a family home under Human Resources Code Chapter 123 (§ 202.003(b)); (5) restrictions on rainwater harvesting devices; (6) fines for brown or discolored turf while a mandated residential watering restriction is in effect and until the 60th day after it is lifted (§ 202.008, added effective September 1, 2025); (7) various other narrow statutory exemptions enacted over the years.
What happens if you violate a restrictive covenant in Texas?
The association can sue (Tex. Prop. Code § 202.004(b)), and so can an owner whom the instrument entitles to enforce it. The court may assess up to $200 for each day the violation continues (§ 202.004(c)). A claimant who wins recovers reasonable attorney's fees under § 5.006. In a subdivision covered by Chapter 209, an association must first send written notice by certified mail before it fines the owner, offering a hearing and, for a curable violation, time to cure (§ 209.006).
Are racially restrictive covenants enforceable in Texas?
No. A restriction or deed provision that bars use, sale, lease or transfer because of race, color, religion or national origin is void, and a court must dismiss a suit to enforce it (Tex. Prop. Code § 5.026). Because the words can remain in recorded instruments, § 5.0261 lets an owner ask a court to strike them by verified motion. The clerk charges no filing fee, and a motion not ruled on within 15 days is deemed granted.
How enforceable are non-competes in Texas?
That is the employment sense of the term, and a different statute governs it. Under Tex. Bus. & Com. Code § 15.50(a), a covenant not to compete is enforceable if it is ancillary to an otherwise enforceable agreement and its limits on time, geographic area and scope of activity are reasonable. For covenants entered into or renewed on or after September 1, 2025, covenants against physicians, dentists, nurses and physician assistants must meet added conditions, including a buyout capped at a year's pay, a one-year limit and a five-mile radius (§§ 15.50(b), 15.501). The noncompete agreement entry covers the rest.
For Texas commercial property buyers in restricted developments (office parks, retail centers, master-planned communities), the restrictive covenants are typically the second most important title document after the deed itself. Buyer review commonly covers (1) every recorded restriction, (2) whether the planned use is compatible, (3) HOA assessment levels and reserve adequacy, (4) the architectural review process for any planned construction and (5) amendment thresholds and existing amendment activity. For residential buyers, the same review applies plus particular attention to short-term rental, home-business, and vehicle/RV restrictions that increasingly drive HOA disputes.