This form is used by a seller and a buyer to impose restrictions on the sold property and property retained by the seller.
Restrictive Covenant Agreement
Basic Information
Date:
Seller:
Seller’s Mailing Address:
Buyer:
Buyer’s Mailing Address:
Conveyed Property: [Describe by metes and bounds or plat reference the property being conveyed by the seller to the buyer that will be subject to the restrictive covenants.]
Retained Property: [Describe by metes and bounds or plat reference the property being retained by the seller that will be subject to the restrictive covenants.]
Development: [Describe by metes and bounds or plat reference the subdivision of which the conveyed property and the retained property are a part.]
Restricted Uses of the Conveyed Property: [specify]
Restricted Uses of the Retained Property: [specify]
Consideration: Good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged by Seller.
Agreements
1.Restrictions on Use of Conveyed Property. No portion of the Conveyed Property may be used for the Restricted Uses of the Conveyed Property for the period beginning on the date of this agreement and ending on the earlier of the expiration of [number] years after that date or the cessation of the use of the Retained Property for any of the Restricted Uses of the Conveyed Property for a continuous period of not less than [number] consecutive days.
2.Restrictions on Use of Retained Property. No portion of the Retained Property may be used for the Restricted Uses of the Retained Property for the period beginning on the date of this agreement and ending on the earlier of the expiration of [number] years after that date or the cessation of the use of the Conveyed Property for any of the Restricted Uses of the Retained Property for a continuous period of not less than [number] consecutive days.
3.Prohibited Uses. The Conveyed Property and the Retained Property will not be used for any of the following prohibited uses for a period beginning on the date of this agreement and ending [number] years after that date: [list prohibited uses].
4.Amendment and Termination. This agreement may be amended or terminated in whole or in part from time to time, and at any time, by written instrument signed by the then owners of all of the Conveyed Property and the Retained Property and by the owners of 75 percent or more in surface area of the remaining portion of the Development and recorded in the real property records of [county] County, Texas; provided, however, that as long as Seller owns any portion of the Development any such instrument must be signed by Seller to be effective.
5.Covenants Running with the Land. Without limiting the provisions of paragraph 4. above, the parties agree that the provisions of this agreement will be deemed to be covenants running with the land that are for the benefit of, and create burdens on, the respective portions of the Development described above.
6.Binding Effect. This agreement binds, benefits, and may be enforced by the successors in interest to the parties.
7.Choice of Law. This agreement will be construed under the laws of the state of Texas, without regard to choice-of-law rules in any jurisdiction. Venue is in the county or counties in which the Development is located.
8.Attorney’s Fees. If [either/any] party retains an attorney to enforce this agreement, the party prevailing in litigation will be entitled to recover reasonable attorney’s fees and court and other costs.
9.Severability. If a provision in this agreement is unenforceable for any reason, to the extent the unenforceability does not destroy the basis of the bargain among the parties, the unenforceability does not affect any other provision of this agreement, and this agreement will be construed as if the unenforceable provision had never been a part of the agreement.
10.Remedies Cumulative. Except as otherwise provided herein, all rights, privileges, and remedies afforded the parties by this agreement will be deemed cumulative and not exclusive and the exercise of any remedy will not be deemed to be a waiver of any other right, remedy, or privilege provided for herein or available at law or in equity. It is expressly understood that a recovery in damages may not be an adequate remedy for a violation of the provisions of this agreement and that the granting of equitable remedies may, and probably will, be necessary.
11.Number and Gender. The use of the singular will be deemed to mean the plural, the masculine to mean the feminine or neuter, and the neuter to mean the masculine or feminine when context requires.
12.Captions. Captions used in this agreement are for convenience only and will not be considered as a limitation on or an expansion of the terms of the agreement.
13.Construction of Agreement. The terms and provisions of this agreement are the result of negotiation between the parties, each of which has been represented by counsel of its selection, and neither of which has acted under duress or compulsion, legal, economic, or otherwise. Consequently, the terms and provisions of this agreement will be interpreted and construed in accordance with their usual and customary meanings, and the parties expressly waive and disclaim any rule of law or procedure interpreting or construing this agreement otherwise, including, without limitation, any rule of law to the effect that ambiguous or conflicting terms or provisions in this agreement must be interpreted or construed against the party whose attorney prepared this agreement or any draft hereof.
14.Other Instruments. The parties to this agreement covenant and agree that they will execute any further instruments and agreements necessary or convenient to carry out the purposes of this agreement, including, without limitation, amendments of this agreement reasonably requested by Seller in connection with the sale of any of the Retained Property to other parties, as long as such amendments do not materially and adversely affect the rights and obligations of Buyer and Buyer’s heirs, successors, and assigns under this agreement.
15.Entire Agreement. This agreement and any exhibits are the entire agreement of the parties concerning the Conveyed Property, the Retained Property, the Development, the Restricted Uses of the Conveyed Property, and the Restricted Uses of the Retained Property. There are no representations, agreements, warranties, or promises, and neither party is relying on any statements or representations of any agent of the other party, that are not in this agreement and any exhibits.
16.Notices. Any notice required or permitted under this agreement must be in writing. Any notice required by this agreement will be deemed to be given (whether received or not) the earlier of receipt or three business days after being deposited with the United States Postal Service, postage prepaid, certified mail, return receipt requested, and addressed to the intended recipient at the address shown in this agreement. Notice may also be given by regular mail, personal delivery, courier delivery, or e-mail and will be effective when received. Any address for notice may be changed by written notice given as provided herein.
17.No Third-Party Beneficiaries. Nothing in this agreement, expressed or implied, is intended or may be construed to confer on any person or entity, other than the parties and their respective heirs, successors, and assigns, any right, remedy, or claim by reason of this agreement. This agreement is intended for the sole and exclusive benefit of the parties and their respective heirs, successors, and assigns as the owners of the Development or portions thereof.
18.Time. Time is of the essence with respect to each covenant, agreement, and obligation of the parties set forth in this agreement.
19.Counterparts. If this agreement is executed in multiple counterparts, all counterparts taken together will constitute this agreement.
[Name of seller]
[Name of buyer]
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Include acknowledgments. |