Disclosing covenants not always mandatory

Mailbag

August 04, 2002

Dear Mr. Azrael,

You indicated in [a recent] article that a Maryland statute obligates the seller to provide the buyer with a copy of recorded covenants and restrictions affecting the property.

The only disclosure that I know of that requires this is a mandatory HOA [homeowners association] disclosure. Not all communities have mandatory HOAs.

Some communities may have recorded covenants but not have a mandatory HOA. Since there is no mandatory HOA disclosure required, these covenants are not being given to purchasers.

Can you please elaborate on the Maryland statute? What disclosure do you think real estate agents should be using?

Norma S. Judd

Columbia

Dear Ms. Judd,

You are correct that disclosure of restrictive covenants is not mandatory in every case. Disclosure is required by statute when the restrictive covenants or homeowners association declaration authorizes the HOA to impose any mandatory fee that is used to benefit some or all of the lots, the owners or occupants or the common areas of a subdivision.

If the HOA has no authority to impose mandatory fees, disclosure of restrictive covenants by the seller is not required.

Real estate agents have independent statutory responsibilities under state licensing laws. An agent must disclose to his or her clients all material information the real estate agent knows about the property. For example, if a real estate agent knows that a buyer intends to construct improvements on the property or use the property in a way that is prohibited or restricted by HOA covenants, the real estate agent has a duty to disclose these material facts to the buyer before a contract is signed.

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