| When it comes to writing covenants in connection with the subdivision and development of land, one size does not fit all. Foresight and careful drafting can avoid litigation, increase property values and better achieve the developer's vision and goals for the development. Some questions to ask: Are the covenants self-resolving? A phrase like “compatible with the existing environment” is open to as many interpretations as there are people reading it. Key terms must be clearly defined. The covenants should provide an internal mechanism for determining which provisions control over others, if there is a conflict between them. For example, one covenant might require the landowner to preserve trees, while another calls for defensible space against wildland fire. The document should be drafted in a way that tends to self-resolve such conflicts. Do the covenants discourage going to court? Covenants whose idea of an enforcement provision is to state that each lot owner may go to court against the other can result in chronic litigation in anything but the smallest subdivisions. Provisions that encourage the homeowners association to resolve enforcement issues and which encourage (or even require) mediation as a condition precedent to filing a lawsuit should be considered. Do the covenants fit with the natural environment? Developers and drafters of covenants have an obligation to be environmentally responsible. The developer is usually aware of what natural features make the property unique. For example, there may be river frontage, wildlife habitat, old growth trees, archaeological sites, or superb views? With careful thought, planning and drafting, covenants can make the preservation and enhancement of such features a central objective. Do the covenants fit with the community’s values? The drafter should determine what the purpose and vision of the development is, and frame the covenants to achieve that objective. Is the development intended to be used for vacation cabins high in the mountains? Then provisions in stock covenants requiring all construction to be completed in nine months and prohibiting residing in recreational vehicles may not fit as well. Is the development intended for high-end or less expensive housing? The design and building criteria should be carefully crafted to achieve these goals. Are the common areas and open space in the community tailored to fit the vision and values of the development? |

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