The Legal DNA of the HOA: Covenants, Easements, and the Common-Interest Estate

Read an HOA's CC&Rs and you find a document a new owner never signed but is fully bound by. That is the legal magic the community association sits on top of. It is not a contract — at least not in the ordinary sense — and treating it like one explains roughly half of the bad decisions self-managed boards make. This is the working summary of what CC&Rs actually are at law, and the doctrines that make them work.

(If you haven't read the companion piece A Brief History of the HOA, start there. The history is what produced the doctrine.)

Three things that run with the land

Anglo-American property law recognizes three distinct categories of obligation that can be attached to a parcel and binding on future owners:

Easements — non-possessory rights to use someone else's land (a utility easement, a shared driveway, a common-area access).
Real covenants — promises about land, enforceable at law for money damages, that "run with the land" if certain technical requirements are met.
Equitable servitudes — promises about land, enforceable in equity by injunction, with looser technical requirements but only against parties with notice.

A modern CC&R is, in legal taxonomy, a bundle of all three: easements (for common-area use), real covenants (the assessment obligation, fundamentally), and equitable servitudes (the use restrictions). The reason a board can both sue an owner for unpaid dues and enjoin a non-conforming paint color is that these are different doctrines doing different work inside the same recorded document.

Tulk v. Moxhay (1848) — the case the whole field rests on

Tulk v. Moxhay, 41 Eng. Rep. 1143 (Ch. 1848), is the English Chancery decision that established the modern equitable servitude. Tulk owned Leicester Square in London, sold it with a covenant requiring the buyer to keep it as an open garden, and then sued a remote purchaser (Moxhay) who knew about the covenant and wanted to build on the square. Lord Cottenham enjoined the construction. The principle: a successor in interest with notice of a covenant restricting use of land could be bound in equity, even where the technical "horizontal privity" required for a real covenant was missing.

Every American community association is, at root, doing what Tulk did at scale and by design: subdividing land with a uniform set of recorded restrictions, then relying on recordation to bind every future owner who takes with notice. Notice is provided by the recorded declaration itself — anyone purchasing within the community is on constructive notice of the CC&Rs.

What it takes for a covenant to "run"

For a real covenant to be enforceable against a successor (the classical doctrine, simplified):

Intent that the covenant run with the land — usually explicit in the declaration.
Touch and concern the land — the covenant must relate to the use, value, or enjoyment of the affected parcels.
Privity — both horizontal (between the original parties at the time of the covenant) and vertical (between each successor and predecessor in the chain of title).
Notice — actual, constructive (by recording), or inquiry.

For an equitable servitude (which is what most use restrictions in CC&Rs end up enforced as), the requirements drop to intent, touch and concern, and notice — privity is not required. This is why the equitable-servitude theory has done most of the heavy lifting in HOA enforcement for the last 150 years.

The Restatement (Third): the modern unification

The American Law Institute's Restatement (Third) of Property: Servitudes (2000) is the most important doctrinal development in this field since Tulk. The Third Restatement collapses the historic distinction between real covenants and equitable servitudes into a single category — servitudes — and discards the horizontal-privity requirement entirely. Its core test (§§ 2.1–3.7) is that a servitude is valid and runs with the land if it was intended to do so, complies with the Statute of Frauds, and is not illegal, unconstitutional, or contrary to public policy.

Not every state has formally adopted the Third Restatement, but most state courts cite to it, and UCIOA tracks it. The practical effect for community associations is that the technical privity arguments that occasionally arose in 20th-century covenant litigation are largely settled — modern recorded declarations are enforceable as servitudes against successive owners on notice, full stop.

The common-interest estate

The condominium and the planned community add a piece of property law that real covenants and equitable servitudes do not have on their own: mandatory membership in an association that holds, manages, or has rights over common elements, and that is funded by a recorded assessment obligation. The "common interest" estate is what makes the association a functioning entity rather than a network of bilateral covenants.

Three components define every common-interest community in U.S. law:

A declaration (recorded) creating the regime — the CC&Rs.
A juridical entity (usually a nonprofit corporation; sometimes an unincorporated association) — the HOA itself, with articles and bylaws.
An assessment lien arising automatically from the declaration as soon as an assessment becomes due — the source of the association's collection power. UCIOA § 3-116 and analogues in state statutes make this lien attach without further recording; it is the unrecorded silent lien that gives community associations their financial backbone.

What this means in practice

Three working corollaries every board should hold onto:

The declaration is the constitution. A board can adopt rules and resolutions; it cannot adopt anything inconsistent with the recorded declaration. When in doubt, the declaration wins, then state statute, then bylaws, then board rules.
Selective enforcement is fatal to equitable claims. Because most use-restriction enforcement proceeds in equity (injunction), the equitable defenses — laches, unclean hands, waiver, selective enforcement — apply. A board that has tolerated four violations cannot suddenly enjoin the fifth on identical facts.
The assessment lien is real, automatic, and powerful — and that is exactly why every state regulates how it is exercised. The careful procedural rules in Cal. Civ. Code §§ 5650 et seq., Fla. Stat. § 720.3085, Tex. Prop. Code §§ 209.0091–.0092 exist precisely because the underlying lien is so robust.

References

Tulk v. Moxhay, 41 Eng. Rep. 1143 (Ch. 1848).
American Law Institute, Restatement (Third) of Property: Servitudes (2000).
Uniform Common Interest Ownership Act §§ 1-103, 2-105, 3-116 (Uniform Law Commission, 1982; revised).
California Civil Code §§ 4000–6150 (Davis-Stirling).
Florida Statutes Chapter 720; Florida Statutes Chapter 718.
Texas Property Code Chapters 82 (Uniform Condominium Act, as adopted) and 209.
Dukeminier, Krier, Alexander, Schill & Strahilevitz. Property (10th ed., Aspen, 2022) — Chapter on Servitudes.

Doctrinal summary; not legal advice. Servitude law differs in detail by jurisdiction.