Restrictive and protective covenants play a very important role in major real estate developments – residential, retail and industrial. They are essential tools to help create value in a development, ensuring the character of a development or preventing harmful uses. The developer seeks to impose restrictions that will bind purchasers after the sale or, in the case of equitable servitudes, bind third parties. The covenants will restrict how the property is used once it is purchased – how its appearance or features may be modified, or otherwise restrict its use or owners. Covenants can be difficult to drive, costly to enforce, and there are limits to what the law will allow. This program will provide you with a practical guide to planning the use of restrictive covenants and equitable servitudes, drafting declarations of covenants and servitudes, discuss their enforceability and how to get the most of them without exceeding what the law allows.
Covenants, conditions and restrictions (CC&Rs), equitable servitudes, and protective covenants
Permissible uses of CC&Rs by developers and unlawful uses
Differences between CC&Rs and equitable servitudes, and enforcement against third parties
Drafting covenant declarations depending on the type of project – industrial, retail or residential
Enhancing the practical and cost-efficient enforceability of covenants without litigation - and available remedies
Modifying and releasing covenants in developments
Manuel A. Fernandez
is partner in the Miami office of Akerman, LLP, where he has an extensive real estate practice representing commercial mortgage lenders, developers, and institutional and non-institutional investors in connection with the acquisition, development, financing, leasing and management of commercial and residential real estate assets and distressed real estate transactions. He also represents hedge funds, pension funds, and other real estate opportunity funds in connection with joint ventures. Mr. Fernandez received his B.A., cum laude, from the University of Miami and his J.D., magna cum laude, from the University of Miami School of Law.
Richard R. Goldberg
is a retired partner, resident in the Philadelphia office of Ballard Spahr, LLP, where he established an extensive real estate practice, including development, financing, leasing, and acquisition. Earlier in his career, he served as vice president and associate general counsel of The Rouse Company for 23 years. He is past president of the American College of Real Estate Lawyers, past chair of the Anglo-American Real Property Institute, and past chair of the International Council of Shopping Centers Law Conference. Mr. Goldberg is currently a Fellow of the American College of Mortgage Attorneys and is a member of the American Law Institute. Mr. Goldberg received his B.A. from Pennsylvania State University and his LL.B. from the University of Maryland School of Law.