Servitudes, Easements & Covenants
The chapter that decides what a covenant can do to you in Montana, and the broadest limit on what a homeowners’ association may add after you buy. The full statutory text, hosted for reference, with a plain-language guide for homeowners.
Montana has no comprehensive homeowners’ association act — no single chapter governing assessments, budgets, boards, records, fines and elections the way Florida’s or Colorado’s does. That is not the same as no law at all: a condominium association is governed by the Unit Ownership Act, which sets the declaration and bylaws and gives the association a lien for common expenses; §§ 35-2-525 and 35-2-550 govern how incorporated and unincorporated associations may meet; and § 70-16-110 controls when an association’s agent may enter your property. What Montana lacks is a single code for association governance. The chapter below — the law of servitudes, easements and covenants running with the land (Mont. Code Ann. §§ 70-17-101 to 70-17-901) — and for most Montana homeowners it is the most important chapter in the code, because it carries the broadest limit the legislature has placed on what a covenant can do to you. It is not the only one, and this chapter says so itself: §§ 70-17-203, 70-17-204 and 70-17-206 each open “Except as provided in 70-1-522” — the statute that makes a covenant banning political or ballot-issue signs contrary to public policy and unenforceable in court. § 70-16-110 is a second, requiring an association to obtain an owner’s permission before its agent enters the owner’s property.
The 2019 restriction: an association cannot tighten how you may use your property after you buy
§ 70-17-901 is the provision to read first. A homeowners’ association may not enter into, amend, or enforce a covenant, condition or restriction in a way that imposes more onerous restrictions on the types of use of a member’s property than those that existed when that member acquired their interest — unless the affected member expressly agrees in writing at the time. A member claiming the benefit must request that the association record the exception, or allow it to be recorded; the member supplies the date the property was conveyed and pays the recording fee (§ 70-17-901(1)(b)). It is a step you take, not a protection that files itself.
Two definitions decide how far this reaches, and both are broad. “Homeowners’ association” means an association of all the owners in a geographic area defined by physical boundaries that is governed by a declaration of covenants, bylaws or both — and expressly includes an association of unit owners under the Unit Ownership Act, so Montana’s condominiums are inside it (§ 70-17-901(6)(a)). “Types of use” is defined as three things (§ 70-17-901(6)(e)): use for residential, agricultural or commercial purposes; the ability to rent the property — land and structures — for any amount of time; and the ability otherwise to develop it in accordance with federal, state and local law. The first and third carry a qualifier the second does not. They count only “unless the use was impermissible according to the written or recorded restrictions”. The rental prong has no such qualifier — which is why a short-term-rental ban adopted after you bought is the clearest case this section was written about.
Now read the limits, because there are five. The section does not apply to a restriction that is not enforceable by a homeowners’ association, or that is required to comply with federal, state or local law (§ 70-17-901(3)). It does not prevent enforcement of a restriction that already applied when you acquired the property (§ 70-17-901(4)). It does not invalidate existing covenants or create a private right of action for anything that happened before May 9, 2019 (§ 70-17-901(5)). And a successor in interest generally cannot claim the benefit of a predecessor’s exception, with narrow carve-outs for shared ownership and for a lender that took the property through foreclosure (§ 70-17-901(2)). And fifth, the definition itself: a use the recorded restrictions already made impermissible was never a protected “type of use”, so subsection (1) never engages for it. The protection runs to the owner who was there when the rule changed — it does not travel with the house to the next buyer.
Abandoned covenants, and the association that stopped meeting
§ 70-17-210 does two things worth knowing. First, an owner may defend an enforcement action by showing the covenant has been abandoned — that no enforcement action has been taken for the period prescribed in § 27-2-202, which for a covenant founded on a written instrument is 6 years. And “enforcement action” has a defined meaning for this defence: the covenant must have been equally and consistently enforced on all properties subject to it over at least a 2-year period (§ 70-17-210(4)). Enforcement aimed at some owners and not others does not count. Once a covenant is abandoned by court order or by a recorded notice of abandonment, everyone is precluded from enforcing it differently against a similarly situated owner. Second, an association or governing body that has not met for 15 years is prohibited from taking enforcement action against an owner whose use is substantially similar to others in the development. Six categories survive that bar, and the list is worth reading in full: covenants otherwise necessary to comply with federal, state or local law; for an easement or right-of-way; for the maintenance of infrastructure or improvements serving the properties; to comply with a court order or a government’s approval given when the covenants were established; for the installation, maintenance or removal of utilities; or to abate a nuisance (§ 70-17-210(3)(b)). A dormant association can still act on a nuisance.
Transfer fees, solar, and child care
- Transfer-fee covenants are void. The legislature found that they impair marketability and are an unreasonable restraint on alienation regardless of duration or amount (§ 70-17-211). § 70-17-212 gives that effect: a transfer fee covenant, and any lien recorded to enforce one, does not run with the title and binds no subsequent owner, purchaser or mortgagee. Read the exclusions before assuming this helps you. “Transfer fee” excludes ordinary consideration, contract-for-deed consideration, broker commissions and lender charges — and, critically for anyone in a community association, it excludes any fee, charge, assessment, dues, contribution or other amount payable to an association of unit owners or to any association of homeowners, mobile home owners, townhouse owners or other property owners created under a recorded declaration with power to require owners to pay the costs of the association’s obligations (§ 70-17-212(2)(b)(v)). A transfer or capital-contribution fee your own association charges at closing is therefore not a “transfer fee covenant” and is not void under this section. The section also does not reach an easement granted under Title 77 (§ 70-17-212(3)).
- Solar easements are written, recorded instruments. Part 3 governs their form: § 70-17-301 requires an easement for the exposure of a solar energy device to be created in writing and recorded like any other easement, and § 70-17-302 sets what the writing must contain. What makes sunlight capable of being an easement at all is this chapter’s own § 70-17-101(19), which recognises “the right of receiving sunlight or wind for recognized nonfossil forms of energy generation”. Note carefully what this is: a way to acquire a right from a neighbour by agreement. It is not a statute voiding a covenant that bans solar panels, and none appears in the nineteen chapters held for this tab — searched across the property, corporations, human-rights and consumer-protection chapters. Compare § 70-1-522, which does exactly that for political signs: when the Montana legislature wants to override a covenant, it says so.
- Home-based child care is a residential use. § 70-17-216 declares that for residential property subject to a covenant, providing child care in a family day-care home or a group day-care home is a residential use and a residential purpose — which takes it outside a covenant limiting the property to residential use.
How it fits with Montana’s other community laws
These covenant rules reach every community, incorporated or not, condominium or subdivision. A condominium additionally has the Unit Ownership Act, and § 70-23-507 sends its associations straight back to § 70-17-901. An incorporated association’s internal machinery comes from the Montana Nonprofit Corporation Act. Discrimination questions go to Title 49, chapter 2. Return to the Montana HOA laws hub for the full set.
Contents · 39 sections ▾
- Part 1 · Servitudes -- Easements
- § 70-17-101 Servitudes attached to land
- § 70-17-102 Servitudes not attached to land
- § 70-17-103 Dominant and servient tenement
- § 70-17-104 Who may grant servitude
- § 70-17-105 Who may not hold servitude
- § 70-17-106 Extent of servitude
- § 70-17-107 Apportionment of burden upon partition of dominant tenement
- § 70-17-108 Rights of owner of future estate in dominant tenement
- § 70-17-109 Who may bring action to enforce easement
- § 70-17-110 Action by owner of servient tenement for possession
- § 70-17-111 How servitude extinguished
- § 70-17-112 Interference with canal or ditch easements prohibited
- § 70-17-113 Prohibited easement
- § 70-17-114 Easement signage
- § 70-17-115 State acquisition of land subject to prescriptive easement
- Part 2 · Covenants Running With the Land
- § 70-17-201 Nature and effect
- § 70-17-202 Covenants specified in this part as exclusive
- § 70-17-203 Covenants that run with land
- § 70-17-204 Who bound by covenant
- § 70-17-205 Nonliability for prior or subsequent breach
- § 70-17-206 Apportionment of burdens and benefits
- § 70-17-207 through 70-17-209 reserved
- § 70-17-210 Covenant enforcement and abandonment
- § 70-17-211 Findings -- purpose
- § 70-17-212 Transfer fee covenants -- void
- § 70-17-213 through 70-17-215 reserved
- § 70-17-216 Home-based child care
- Part 3 · Solar Easements
- § 70-17-301 Creation of solar easements
- § 70-17-302 Content of solar easements
- § 70-17-303 Repealed
- Part 4 · Wind Energy Easements
- § 70-17-401 Short title
- § 70-17-402 Definitions
- § 70-17-403 Wind easement creation -- terms
- § 70-17-404 Severance of wind energy rights limited
- § 70-17-405 Wind option agreements -- contents and requirements -- notarization
- § 70-17-406 Wind energy agreement -- contents and requirements -- notarization
- § 70-17-407 Wind energy agreements -- grandfather clause
- § 70-17-408 Preservation of property rights
- Part 9 · Restrictions Pertaining to Homeowners’ Associations
- § 70-17-901 Homeowners’ association restrictions -- real property rights
The following land burdens or servitudes upon land may be attached to other land as incidents or appurtenances and are then called easements:
(1) the right of pasture;
(2) the right of fishing;
(3) the right of taking game;
(4) the right-of-way;
(5) the right of taking water, wood, minerals, and other things;
(6) the right of transacting business upon land;
(7) the right of conducting lawful sports upon land;
(8) the right of receiving air, light, or heat from or over or discharging the same upon or over land;
(9) the right of receiving water from or discharging the same upon land;
(10) the right of flooding land;
(11) the right of having water flow without diminution or disturbance of any kind;
(12) the right of using a wall as a party wall;
(13) the right of receiving more than natural support from adjacent land or things affixed thereto;
(14) the right of having the whole of a division fence maintained by a coterminous owner;
(15) the right of having public conveyances stopped or of stopping the same on land;
(16) the right of a seat in church;
(17) the right of burial;
(18) the right of conserving open space to preserve park, recreational, historic, aesthetic, cultural, and natural values on or related to land;
(19) the right of receiving sunlight or wind for recognized nonfossil forms of energy generation; and
(20) the right of using land adjacent to a firearms shooting range as a range safety zone.
History: En. Sec. 1250, Civ. C. 1895; re-en. Sec. 4507, Rev. C. 1907; re-en. Sec. 6749, R.C.M. 1921; Cal. Civ. C. Sec. 801; Field Civ. C. Sec. 245; re-en. Sec. 6749, R.C.M. 1935; amd. Sec. 16, Ch. 489, L. 1975; R.C.M. 1947, 67-601; amd. Sec. 1, Ch. 209, L. 1983; amd. Sec. 1, Ch. 111, L. 1993.
The following land burdens or servitudes upon land may be granted and held though not attached to land:
(1) the right of pasture and of fishing and taking game;
(2) the right of a seat in church;
(3) the right of burial;
(4) the right of taking rents and tolls;
(5) the right-of-way;
(6) the right of taking water, wood, minerals, or other things;
(7) the right of conserving open space to preserve park, recreational, historic, aesthetic, cultural, and natural values on or related to land.
History: En. Sec. 1251, Civ. C. 1895; re-en. Sec. 4508, Rev. C. 1907; re-en. Sec. 6750, R.C.M. 1921; Cal. Civ. C. Sec. 802; Based on Field Civ. C. Sec. 246; re-en. Sec. 6750, R.C.M. 1935; amd. Sec. 17, Ch. 489, L. 1975; R.C.M. 1947, 67-602.
The land to which an easement is attached is called the dominant tenement. The land upon which a burden or servitude is held is called the servient tenement.
History: En. Sec. 1252, Civ. C. 1895; re-en. Sec. 4509, Rev. C. 1907; re-en. Sec. 6751, R.C.M. 1921; Cal. Civ. C. Sec. 803; Field Civ. C. Sec. 247; re-en. Sec. 6751, R.C.M. 1935; R.C.M. 1947, 67-603.
A servitude can be created only by one who has a vested estate in the servient tenement.
History: En. Sec. 1253, Civ. C. 1895; re-en. Sec. 4510, Rev. C. 1907; re-en. Sec. 6752, R.C.M. 1921; Cal. Civ. C. Sec. 804; Field Civ. C. Sec. 248; re-en. Sec. 6752, R.C.M. 1935; R.C.M. 1947, 67-604.
A servitude thereon cannot be held by the owner of the servient tenement.
History: En. Sec. 1254, Civ. C. 1895; re-en. Sec. 4511, Rev. C. 1907; re-en. Sec. 6753, R.C.M. 1921; Cal. Civ. C. Sec. 805; Field Civ. C. Sec. 249; re-en. Sec. 6753, R.C.M. 1935; R.C.M. 1947, 67-605.
(1) Except as otherwise provided in 23-2-312, 23-2-322, and this section, the extent of a servitude is determined by the terms of the grant or the nature of the enjoyment by which it was acquired.
(2) A servitude granted, either by the terms of the grant or by the nature of the enjoyment, to a local, state, or federal government body for administrative purposes does not create a right to use the servitude for any other purpose unless specifically provided for in writing in the grant.
(3) The holder of a written servitude may not use the servitude to grant additional rights and privileges to a successor or assignee unless the successor or assignee is specifically provided for in writing in the grant.
History: En. Sec. 1255, Civ. C. 1895; re-en. Sec. 4512, Rev. C. 1907; re-en. Sec. 6754, R.C.M. 1921; Cal. Civ. C. Sec. 806; Field Civ. C. Sec. 250; re-en. Sec. 6754, R.C.M. 1935; R.C.M. 1947, 67-606; amd. Sec. 2, Ch. 453, L. 2021.
In case of partition of the dominant tenement, the burden must be apportioned according to the division of the dominant tenement but not in such a way as to increase the burden upon the servient tenement.
History: En. Sec. 1256, Civ. C. 1895; re-en. Sec. 4513, Rev. C. 1907; re-en. Sec. 6755, R.C.M. 1921; Cal. Civ. C. Sec. 807; Field Civ. C. Sec. 251; re-en. Sec. 6755, R.C.M. 1935; R.C.M. 1947, 67-607.
The owner of a future estate in a dominant tenement may use easements attached thereto for the purpose of viewing waste, demanding rent, or removing an obstruction to the enjoyment of such easements although such tenement is occupied by a tenant.
History: En. Sec. 1257, Civ. C. 1895; re-en. Sec. 4514, Rev. C. 1907; re-en. Sec. 6756, R.C.M. 1921; Cal. Civ. C. Sec. 808; Field Civ. C. Sec. 252; re-en. Sec. 6756, R.C.M. 1935; R.C.M. 1947, 67-608.
The owner of any estate in a dominant tenement or the occupant of such tenement may maintain an action for the enforcement of an easement attached thereto.
History: En. Sec. 1258, Civ. C. 1895; re-en. Sec. 4515, Rev. C. 1907; re-en. Sec. 6757, R.C.M. 1921; Cal. Civ. C. Sec. 809; Field Civ. C. Sec. 253; re-en. Sec. 6757, R.C.M. 1935; Sec. 67-609, R.C.M. 1947; redes. 62-617 by Sec. 15, Ch. 489, L. 1975; R.C.M. 1947, 62-617.
The owner in fee of a servient tenement may maintain an action for the possession of the land against any one unlawfully possessed thereof though a servitude exists thereon in favor of the public.
History: En. Sec. 1259, Civ. C. 1895; re-en. Sec. 4516, Rev. C. 1907; re-en. Sec. 6758, R.C.M. 1921; Cal. Civ. C. Sec. 810; Field Civ. C. Sec. 254; re-en. Sec. 6758, R.C.M. 1935; R.C.M. 1947, 67-610.
(1) Except as provided in subsection (2), a servitude is extinguished:
(a) by the vesting of the right to the servitude and the right to the servient tenement in the same person;
(b) by the destruction of the servient tenement;
(c) by the performance of any act upon either tenement by the owner of the servitude or with the owner’s assent that is incompatible with its nature or exercise; or
(d) when the servitude was acquired by enjoyment, by disuse of the servitude by the owner of the servitude for the period prescribed for acquiring title by enjoyment.
(2) A conservation easement may not be extinguished by taking fee title to the land to which the conservation easement is attached.
History: En. Sec. 1260, Civ. C. 1895; re-en. Sec. 4517, Rev. C. 1907; re-en. Sec. 6759, R.C.M. 1921; Cal. Civ. C. Sec. 811; Field Civ. C. Sec. 255; re-en. Sec. 6759, R.C.M. 1935; R.C.M. 1947, 67-611; amd. Sec. 1, Ch. 352, L. 2007.
(1) A person with a canal or ditch easement has a secondary easement to enter, inspect, repair, and maintain a canal or ditch or to operate the appropriation works. A person retains this secondary easement if the canal or ditch is converted into a pipeline and the pipeline is conspicuously marked.
(2) A person may not encroach on or otherwise impair any easement for a canal or ditch used for irrigation or any other lawful domestic or commercial purpose, including carrying return water. A person may not encroach on or otherwise impair any easement for a canal or ditch under this subsection that has been converted into a pipeline.
(3) The provisions of subsection (2) do not apply if the holder of the canal, ditch, or pipeline easement consents in writing to the encroachment or impairment.
(4) Each canal or ditch easement obtained by prescription or conveyance is included within the scope of this section. Nothing in this section establishes a secondary easement where none existed prior to April 14, 1981. This section does not affect contracts or agreements concluded prior to April 14, 1981.
(5) If a legal action is brought to enforce the provisions of this section, the prevailing party is entitled to costs and reasonable attorney fees.
History: En. Sec. 1, Ch. 371, L. 1981; amd. Sec. 1, Ch. 180, L. 2013; amd. Sec. 1, Ch. 447, L. 2025.
If an existing road or road easement provides access to a lot in a platted residential subdivision, the owner of a lot or parcel in a platted residential subdivision may not obtain a prescriptive easement for ingress or egress to the lot if the prescriptive easement crosses other lots or parcels in the platted residential subdivision.
History: En. Sec. 1, Ch. 304, L. 2021.
The owner of a servient tenement may place private property signage along the servitude boundary to ensure those persons or entities using the servitude understand the servitude boundary.
History: En. Sec. 1, Ch. 453, L. 2021.
Acquisition by the state of land subject to a prescriptive easement does not terminate the prescriptive easement.
History: En. Sec. 1, Ch. 329, L. 2023.
Certain covenants contained in grants of estates in real property are appurtenant to such estates and pass with them so as to bind the assigns of the covenantor and to vest in the assigns of the covenantee in the same manner as if they had personally entered into them. Such covenants are said to run with the land.
History: En. Sec. 1983, Civ. C. 1895; re-en. Sec. 4914, Rev. C. 1907; re-en. Sec. 7416, R.C.M. 1921; Cal. Civ. C. Sec. 1460; Field Civ. C. Sec. 691; re-en. Sec. 7416, R.C.M. 1935; R.C.M. 1947, 58-304.
The only covenants which run with the land are those specified in this part and those which are incidental thereto.
History: En. Sec. 1984, Civ. C. 1895; re-en. Sec. 4915, Rev. C. 1907; re-en. Sec. 7417, R.C.M. 1921; Cal. Civ. C. Sec. 1461; Field Civ. C. Sec. 692; re-en. Sec. 7417, R.C.M. 1935; R.C.M. 1947, 58-305.
(1) Except as provided in 70-1-522 and 70-17-212, every covenant contained in a grant of an estate in real property that is made for the direct benefit of the property or some part of the property then in existence runs with the land.
(2) Subsection (1) includes:
(a) covenants of warranty, for quiet enjoyment, or for further assurance on the part of the grantor and covenants for the payment of rent or of taxes or assessments upon the land on the part of a grantee;
(b) conservation easements pursuant to 76-6-209;
(c) a dedication of open space as provided in 76-3-509; and
(d) wind easements pursuant to Title 70, chapter 17, part 4.
(3) A covenant for the addition of some new thing to real property or for the direct benefit of some part of the property not then in existence or annexed to the property, when contained in a grant of an estate in the property and made by the covenantor expressly for the covenantor’s assigns or to the assigns of the covenantee, runs with the land so far as the assigns mentioned are concerned.
History: En. Secs. 1985, 1986, 1987, Civ. C. 1895; re-en. Secs. 4916, 4917, 4918, Rev. C. 1907; re-en. Secs. 7418, 7419, 7420, R.C.M. 1921; Cal. Civ. C. Secs. 1462, 1463, 1464; Field Civ. C. Secs. 693, 694, 695; re-en. Secs. 7418, 7419, 7420, R.C.M. 1935; R.C.M. 1947, 58-306, 58-307, 58-308; amd. Sec. 2, Ch. 352, L. 2007; amd. Sec. 3, Ch. 307, L. 2009; amd. Sec. 1, Ch. 137, L. 2011; amd. Sec. 9, Ch. 249, L. 2011; amd. Sec. 3, Ch. 259, L. 2011.
Except as provided in 70-1-522, a covenant running with the land binds only those who acquire the whole estate of the covenantor in some part of the property.
History: En. Sec. 1988, Civ. C. 1895; re-en. Sec. 4919, Rev. C. 1907; re-en. Sec. 7421, R.C.M. 1921; Cal. Civ. C. Sec. 1465; Field Civ. C. Sec. 696; re-en. Sec. 7421, R.C.M. 1935; R.C.M. 1947, 58-309; amd. Sec. 4, Ch. 307, L. 2009.
A person, merely by reason of having acquired an estate subject to a covenant running with the land, is not liable for a breach of the covenant before the person acquired the estate or after the person has parted with the estate or ceased to enjoy its benefits.
History: En. Sec. 1989, Civ. C. 1895; re-en. Sec. 4920, Rev. C. 1907; re-en. Sec. 7422, R.C.M. 1921; Cal. Civ. C. Sec. 1466; Field Civ. C. Sec. 697; re-en. Sec. 7422, R.C.M. 1935; R.C.M. 1947, 58-310; amd. Sec. 2127, Ch. 56, L. 2009.
Except as provided in 70-1-522, if several persons holding by several titles are subject to the burden or entitled to the benefits of a covenant running with the land, the covenant must be apportioned among them according to the value of the property subject to it held by them respectively if the value can be ascertained and, if not, then according to their respective interests in point of quantity.
History: En. Sec. 1990, Civ. C. 1895; re-en. Sec. 4921, Rev. C. 1907; re-en. Sec. 7423, R.C.M. 1921; Cal. Civ. C. Sec. 1467; Field Civ. C. Sec. 698; re-en. Sec. 7423, R.C.M. 1935; R.C.M. 1947, 58-311; amd. Sec. 5, Ch. 307, L. 2009.
(1) The following persons may initiate a legal action to enforce covenants, conditions, or restrictions:
(a) a party to an agreement containing real property covenants, conditions, or restrictions or the party’s successors in interest;
(b) the owner of an interest in real property burdened or benefited by a covenant, condition, or restriction; or
(c) a homeowners’ association or other governing body of a real property development subject to covenants, conditions, or restrictions.
(2) The owner of an interest in real property subject to a covenant, condition, or restriction may assert a defense that a covenant, condition, or restriction has been abandoned for purposes of enforcement by offering evidence that no enforcement action has been undertaken for the prescribed period in 27-2-202. Once a covenant, condition, or restriction is abandoned by a court order or agreed to have been abandoned by the approval of the appropriate association or governing body by recording a notice of abandonment or amendment in the office of the county clerk and recorder of the county where the property is situated, all persons are precluded from undertaking a different interpretation or enforcement action of the abandoned covenant, condition, or restriction against a similarly situated owner of an interest in real property subject to the abandoned covenant, condition, or restriction.
(3) (a) Except as provided in subsection (3)(b), an association or governing body of a real property development that has not met for a period of 15 years is prohibited from taking an enforcement action against the owner of an interest in real property subject to a covenant, condition, or restriction whose use of the property is substantially similar to the nature and scope of the use of other properties in the development.
(b) Covenants, conditions, and restrictions are still valid and enforceable under this subsection (3) if they are otherwise necessary:
(i) to comply with applicable federal, state, and local laws, ordinances, and regulations;
(ii) for an easement or right-of-way;
(iii) for the maintenance of infrastructure or improvements serving the real properties burdened or benefited by the covenants, conditions, or restrictions;
(iv) to comply with a court order or the approval provided by a government on the establishment of the covenants, conditions, and restrictions;
(v) for the installation, maintenance, or removal of utilities; or
(vi) to abate a nuisance.
(4) For the purposes of this section and as it pertains to a parcel owner’s defense, “enforcement action” related to a covenant means that the covenant was equally and consistently enforced under whatever method an association uses to enforce covenants on all properties subject to the covenant over at least a 2-year period.
History: En. Sec. 1, Ch. 665, L. 2023 (revised May 3, 2024); amd. Sec. 1, Ch. 258, L. 2025; amd. Sec. 1, Ch. 423, L. 2025.
The legislature finds and declares that transfer fee covenants, as defined in 70-17-212, impair the marketability and transferability of real property by constituting an unreasonable restraint on alienation regardless of the duration of the covenants or the amount of the transfer fees. The purpose of 70-17-212 and this section is to prohibit transfer fee covenants from running with the title to real property or binding subsequent owners of the property under common law or equitable principles.
History: En. Sec. 1, Ch. 259, L. 2011.
(1) A transfer fee covenant or any lien that is recorded or filed to enforce a transfer fee under a transfer fee covenant does not run with the title to real property and is not binding upon or enforceable at law or in equity against any subsequent owner, purchaser, or mortgagee of any interest in the real property as a covenant, an equitable servitude, or otherwise.
(2) For purposes of this section, the following definitions apply:
(a) “Transfer” has the meaning provided in 70-1-501.
(b) “Transfer fee” means a fee or charge payable upon the transfer of legal or equitable title to an interest in real property regardless of whether the fee or charge is a fixed amount or is determined as a percentage of the value of the real property, the purchase price, or other consideration given for the transfer. For purposes of this section, a transfer fee does not include the following:
(i) consideration payable by the transferee to the transferor for the interest in real property being transferred, including any subsequent additional consideration for the property payable by the transferee based upon any subsequent appreciation, development, or sale of the property, if the additional consideration is payable on a one-time basis only and the obligation to make the payment does not bind the original transferee’s successors in interest to the property;
(ii) a commission payable to a licensed real estate salesperson or broker for the transfer of real property pursuant to an agreement between the broker and the transferor or the transferee, including any subsequent additional commission for the transfer payable by the transferor or the transferee based upon any subsequent appreciation, development, or sale of the property;
(iii) interest, charges, fees, or other amounts payable by a borrower to a lender pursuant to a loan secured by a mortgage, deed of trust, trust indenture, or other security interest against real property, including but not limited to a fee payable to the lender for consenting to an assumption of the loan or a transfer of the real property subject to the mortgage or other security interest, fees, or charges payable to the lender;
(iv) consideration payable by a buyer under a contract for deed as a condition of allowing a buyer to acquire equitable title to the real property described in the contract for deed;
(v) any fee, charge, assessment, dues, contribution, or other amount payable to:
(A) an association of unit owners as defined in 70-23-102 or any association of homeowners, mobile home owners, townhouse owners, or other property owners created pursuant to a recorded declaration that has the power to require owners to pay the costs and expenses incurred in the performance of the association’s obligations; or
(B) a nonprofit corporation as provided in Title 35, chapter 2, that is exempt from taxation under section 501(c)(3), 501(c)(4), or 528 of the Internal Revenue Code.
(c) “Transfer fee covenant” means a covenant or declaration recorded or filed against the title to real property that requires the payment of a transfer fee to the declarant or other person specified in the covenant or declaration or to the declarant’s or other person’s successors or assigns upon each subsequent transfer of a legal or equitable interest in the real property.
(3) This section does not apply to any easement granted pursuant to Title 77.
History: En. Sec. 2, Ch. 259, L. 2011.
For residential property subject to a covenant, providing child care in a family day-care home as defined in 52-2-703 or a group day-care home as defined in 52-2-703 is a residential use of property and is a residential purpose.
History: En. Sec. 1, Ch. 169, L. 2023.
An easement obtained for the purpose of exposure of a solar energy device must be created in writing and is subject to the same conveyancing and instrument recording requirements as other easements on real property.
History: En. Sec. 1, Ch. 524, L. 1979.
An instrument creating a solar easement must specify at least:
(1) the vertical and horizontal angles, expressed in degrees, at which the solar easement extends over the real property subject to the solar easement; and
(2) any terms or conditions under which the solar easement is granted or will be terminated.
History: En. Sec. 2, Ch. 524, L. 1979.
Sec. 10, Ch. 249, L. 2011.
History: En. Sec. 2, Ch. 209, L. 1983.
This part may be cited as the “Wind Energy Rights Act”.
History: En. Sec. 1, Ch. 249, L. 2011.
As used in this part, the following definitions apply:
(1) “Wind easement” means the right granted by the owner of real property to a wind energy developer guaranteeing the developer the right to use the real property legally described in a wind energy agreement and the wind resource located on and flowing over its surface to develop a wind energy project. A wind easement is an interest in real property.
(2) “Wind energy agreement” means any wind energy lease or license or any other written document entered into between the owner of the real property and the wind energy developer that contains the wind easement.
(3) “Wind energy developer” means the person that enters into a wind option agreement or wind energy agreement with the owner of the real property for the purpose of developing a wind energy project.
(4) “Wind energy right” means an interest in real property on and over which the wind resource is located and flows that is appurtenant to the real property.
(5) “Wind option agreement” means a written agreement in which the owner of real property grants a wind energy developer an exclusive right to obtain a wind easement through a wind energy agreement.
History: En. Sec. 2, Ch. 249, L. 2011.
(1) A property owner may grant a wind easement in the same manner and with the same effect as the conveyance of an interest in real property.
(2) The wind easement runs with the real property on and over which the wind resource flows.
(3) A wind easement terminates under the terms and conditions outlined in the wind easement.
History: En. Sec. 3, Ch. 249, L. 2011.
(1) A wind energy right in the wind resource located on and flowing over the real property, including without limitation a royalty, if applicable, associated with the production of wind energy may not be severed from the real property even though a wind easement may be created pursuant to this part.
(2) Nothing in this section may be construed to prohibit or limit the right of a seller of the real property to retain any payments associated with an existing wind option agreement or wind energy agreement.
History: En. Sec. 4, Ch. 249, L. 2011.
(1) A wind option agreement executed after April 21, 2011, must contain but is not limited to:
(a) the names and addresses of the parties to the wind option agreement;
(b) a legal description of the real property subject to the wind option agreement;
(c) the specified term beyond which the wind option agreement terminates and the real property is released from the obligations outlined in the wind option agreement;
(d) compensation for the owner of the real property on and over which the wind resource flows; and
(e) other terms and conditions agreed upon by the owner of the real property and the wind energy developer.
(2) A wind option agreement must be notarized.
(3) A wind option agreement may not exceed 20 years unless extended by agreement of the parties.
History: En. Sec. 5, Ch. 249, L. 2011.
(1) A wind energy agreement executed after April 21, 2011, must contain but is not limited to:
(a) the names and addresses of the parties to the wind energy agreement;
(b) a legal description of the real property subject to the wind easement and contained in the wind energy agreement;
(c) the obligations of the owner of the real property to ensure the undisturbed flow of wind on and over the real property, including restrictions placed upon vegetation, structures, and other objects that would impair or obstruct the wind flow on and over the real property. Structures do not include equipment necessary to access minerals as they relate to the rights belonging to or the dominance of the mineral estate pursuant to 70-17-408.
(d) a specified term including the date on which the wind energy agreement or wind easement terminates;
(e) provisions to compensate the owner of the real property for the wind easement;
(f) provisions ensuring that the owner of the real property is not liable for any property tax associated with the wind energy project or other equipment related to the development of the wind energy project during the term of the wind energy agreement;
(g) provisions addressing property owner and wind energy developer liability during the construction and operation of the wind energy project and equipment;
(h) provisions obligating the wind energy developer to comply with federal, state, and local laws and regulations; and
(i) conditions upon which the wind energy agreement may be terminated prior to its termination date.
(2) A wind energy agreement must be notarized.
(3) If the terms of the wind energy agreement do not contain the requirements listed in subsection (1), a court may void the wind energy agreement or order any relief allowed by law.
History: En. Sec. 6, Ch. 249, L. 2011.
This part may not be construed to alter, amend, diminish, or invalidate wind energy rights acquired by contract, agreement, or lease prior to April 21, 2011.
History: En. Sec. 7, Ch. 249, L. 2011.
This part may not be construed to:
(1) change or alter common law in accordance with 1-1-108 as it relates to the rights belonging to or the dominance of the mineral estate; or
(2) change or alter common law or statutory provisions regarding the ownership of surface or subsurface rights.
(3) Notwithstanding the provisions of this part or a wind energy agreement, the real property owner retains the right to grant easements or rights-of-way for all electric power lines to be located on the property.
History: En. Sec. 8, Ch. 249, L. 2011.
(1) (a) A homeowners’ association may not enter into, amend, or enforce a covenant, condition, or restriction in such a way that imposes more onerous restrictions on the types of use of a member’s real property than those restrictions that existed when the member acquired the member’s interest in the real property, unless the member who owns the affected real property expressly agrees in writing at the time of the adoption or amendment of the covenant, condition, or restriction.
(b) When a member claims the benefit of this subsection (1), the member shall request that the homeowners’ association record, or allow recording of, the exception applicable to the member. Upon request by the member, the homeowners’ association, the member, or a designee shall record the member’s exception with the office of the county clerk and recorder of the county where the real property is situated. The member shall provide the homeowners’ association with the date the real property was conveyed to the member and shall pay the recording fees for the document setting forth the exception.
(2) A successor-in-interest to a member’s real property may not claim the benefit of subsection (1) to the extent that the homeowners’ association entered into, amended, or enforced a covenant, condition, or restriction before the successor-in-interest purchased the real property, even if the covenant, condition, or restriction was not enforceable against the previous owner pursuant to subsection (1), unless the successor-in-interest is owned by or shares ownership with the previous member or unless the successor-in-interest is a lender that acquired the real property through foreclosure.
(3) This section does not apply to a covenant, condition, or restriction:
(a) that is not subject to enforcement by a homeowners’ association; or
(b) that is required in order to comply with applicable federal, state, and local laws, ordinances, and regulations.
(4) Nothing in this section may be construed to prevent the enforcement of a covenant, condition, or restriction limiting the types of use of a member’s real property as long as the covenant, condition, or restriction applied to the real property at the time the member acquired the member’s interest in the real property.
(5) Nothing in this section invalidates existing covenants of a homeowners’ association or creates a private right of action for actions or omissions occurring before May 9, 2019. However, after May 9, 2019, unless the member has consented as provided by subsection (1), a homeowners’ association may not enforce a covenant, condition, or restriction in such a way that limits the types of use of a member’s real property that were allowed when the member acquired the affected real property.
(6) As used in this section, the following definitions apply:
(a) “Homeowners’ association” means:
(i) an association of all the owners of real property within a geographic area defined by physical boundaries which:
(A) is formally governed by a declaration of covenants, bylaws, or both;
(B) may be authorized to impose assessments that, if unpaid, may become a lien on a member’s real property; and
(C) may enact or enforce rules concerning the operation of the community or subdivision; or
(ii) an association of unit owners as defined by 70-23-102 subject to the Unit Ownership Act.
(b) “Member” means a person that belongs to a homeowners’ association and whose real property is subject to the jurisdiction of the homeowners’ association.
(c) “Person” means one or more individuals or a legal or commercial entity.
(d) “Real property” has the meaning provided in 70-1-106, except that it is limited to real property governed by a homeowners’ association.
(e) “Types of use” means the following lawful types of use of the real property:
(i) use for residential, agricultural, or commercial purposes, unless the use was impermissible according to the written or recorded restrictions;
(ii) the ability to rent the real property, including the land and structures on the real property, for any amount of time; and
(iii) the ability to otherwise develop the real property in accordance with applicable federal, state, and local laws, ordinances, and regulations, unless the ability was impermissible according to the written or recorded restrictions.
History: En. Sec. 1, Ch. 339, L. 2019.
General information, not legal advice. Statutory text is reproduced from the Montana Code Annotated and may not reflect the most recent amendments.