Tuesday, 26 August 2014

Reader mailbag: restrictive covenants edition

If the particular character of a neighbourhood is all that important, why don't residents protect it using covenants?

A reader emails me:
I don’t think it is Nimbyism if a neighbourhood wants to protect its own character. What is Nimbyism is denying others beyond your neighbourhood the same opportunity you had.
It seems counter intuitive to think a place like Houston which has few zoning laws gives local communities greater control to enable the protection of individual property rights by allowing those individuals to collectively agree to covenant those rights (which include the protection of special character areas like Franklin Rd) and yet not to interfere with others who may wish a different way outside that zone.
High density advocates hate the idea that Houston communities that fringe CBD areas can continue to live a lifestyle that they have agreed to and also stop others (like Dhyrberg) from coming in and destroying it.
I know that many new developments come with covenants restricting future use of the property: developers expect that residents want rules binding both themselves and their neighbours. I don't want to live in that kind of place, but in a world of heterogeneous preferences, some prefer homogeneity.

Is there anything legally that would stop residents in places like Epsom, Grey Lynn, or any of the other hotbeds of development discord, from jointly agreeing to bind themselves against future development?

Under the status quo, everyone on the street seems to have been given a property right in what anybody else does with their property even though no covenant was put in place. It's an odd conception of property rights to say that, because I bought my house with certain expectations of what my neighbours might do, I therefore am allowed to veto anything they may wish to do with it.

Imagine some street where most residents put value on the street's current character; some on the street would prefer to turn their houses to higher-density use. The current rules let the character-amenity people shout a lot and block the development; those wishing to develop have to pay off all the potential veto players in order to prevent their blocking. Shouting is cheap and, since a developer would have to pay off every potential shouter, there is incentive to pretend to care more than you really do. I'm sure much of the shouting is genuine. But we have little sense of the real dollar value of the experienced disamentiy.

An alternative framework would have those who love the neighbourhood's particular character draft up a covenant agreement and try to get all the owners to sign on. If there are neighbours who were set to re-develop instead, they'd either not sign and not be bound, or be paid by their neighbours to take on the covenant's provisions.

Coase tells us that in low transaction cost environments the two scenarios should be equivalent. Coase also tells us that all the interesting action is in the high transaction cost real world. Is it cheaper to overstate your preference against a neighbour's re-development, or to overstate your willingness to turn your house into a 3-storey set of condos to try to induce payments not to? The former is pretty easy. The latter generally takes a set of architectural and engineering drawings plus building consent applications.

I wonder whether it would be workable to do away with neighbours' ability to object to anything other than real environmental effects like shading by replacing the regime with a menu of covenant options that neighbours might wish to impose upon themselves consensually.

Thanks to my correspondent for useful discussion.


  1. Despite the elegance of this idea, I think that the right to complain can't be signed away no matter what. This is similar to moving in next door to an airport. Think of the scenario where someone moves in knowing that the airport is already there, but isn't fully prepared for what that means on a day to day basis. They can complain in a court, but the court will rightly point out that they should have known beforehand (and that would get thrown out pretty fast). But they can still complain bitterly to their local MP, who has no consideration of rights of first residency and only for who is the shouts loudest.

    I might sign a covenant, but then go to pieces of the injustices of these new 'pro developer' covenants which 'unfairly target existing communities'... or some other complaint.

  2. By 'character', the guilty parties - including but not limited to Bill Ralston and David Seymour - really mean blocking out people not like them. Sometimes it seems to be a code word for blatant snobbery. Are they really that paranoid that intensification means Jake Heke or Osama bin Laden move in next door?

    And multi-storey apartments already exist in Remuera. Would David Seymour come at them with wrecking balls?


  3. This may be true, but if so, the argument proves too much. If nothing withstands "but people will complain to their MP", then nothing can be done.

    Very plausible that the effectiveness of this erodes over time as the covenants get older and if the amending formulas come to be viewed as too / insufficiently restrictive, but it could give us a decade.

  4. Great post. Reading stories about NIMBYs in inner Auckland, it feels like they are often trying to fabricate new property rights through a manipulation of the political process.