When one purchases a property on Kauai, it is likely that there will be Neighborhood Covenants, more commonly called CC&Rs (Conditions, Covenants and Restrictions) attached to your deed, a previous deed or recorded separately on the title.  These covenants are basically the specific rules that apply to a neighborhood or subdivision. They are written when the subdivision is developed and are usually recorded.

Sometimes they have a time limit after which they expire; many of the older subdivisions on Kauai no longer have enforceable CC&Rs. Covenants are more restrictive than any County laws pertaining to the same neighborhood.  For example, in a neighborhood where the County allows for two houses per acre under zoning, the CC&Rs might only allow for one house, no matter how big the lot. Examples of restrictions we often see on CC&Rs include: no noxious odors or certain animals, no obstructing a neighbor’s view, no guest houses and  no metal roofs. CC&Rs can usually be changed if the majority of the neighborhood agrees to the change, however this might be challenging based on the numbers of people who have to agree.

The County of Kauai will not enforce CC&Rs, and therein lies the issue.

Although Buyers feel protected by their CC&Rs, they may be, in fact, VERY difficult to enforce. Say your neighbor builds a guest house that is legal according to the County, but not allowed by the CC&Rs. The only way to stop him is to hire an attorney and file a suit. Plus, many attorneys claim that if the CC&Rs have already been broken (is this the 2nd guest house in your neighborhood?) than the CC&Rs are considered null and void. Of course, most people don’t want to go to the expense of filing a lawsuit, so in many neighborhoods on Kauai violations of the CC&Rs are evident.

So once again, the old saying “Buyer beware” holds true here. Before you buy, read the Conditions, Covenants and Restrictions carefully and decide which items are important to you. Check to see if they have already been broken, because if they have, they are probably no longer enforceable.