Why the omission matters to an association rather than to a developer

The question is not whether such covenants can be written — parties can contract. It is whether they run with the land against successors as a matter of statute, which is what determines their durability across resales and foreclosures over the decades a “long-term affordability” restriction is supposed to last.

That lands on Montana associations in three recurring situations, all of them concentrated in the resort and high-cost markets where deed restrictions are most used:

• A subdivision approval conditioned on deed-restricted units. The association inherits units carrying income or occupancy restrictions it did not draft and may have no role in enforcing — while its own covenants, assessments and resale processes have to accommodate them.
• Resale and estoppel. A restriction on the owner's share of appreciation in equity is exactly the kind of encumbrance a resale certificate has to address. An association asked to certify what burdens a unit needs to know what the restriction is and who holds it.
• Assessment exposure. A price-restricted unit still owes full assessments. Where a restriction limits what the owner can realise on sale, a large delinquency plus a capped sale price is a worse recovery position than the association's lien analysis usually assumes.

The context that makes this a 2027 question

Two things have happened around HB 422's failure that keep the subject alive.²

Municipalities are pushing ahead without it. Montana's larger cities have spent 2026 rewriting land use plans and codes to meet the Montana Land Use Planning Act, and affordability is the stated driver. Missoula adopted a Unified Development Code in February 2026 targeting 1,100 to 1,500 new housing units annually; Kalispell, Whitefish and Columbia Falls adopted new plans and regulations in April, May and June 2026. Meanwhile House Bill 378, which would have removed Montana's restriction on inclusionary zoning, also died in 2025 — so local governments cannot simply mandate affordable units, which pushes them toward negotiated deed restrictions instead.

The interim is studying the same ground. House Joint Resolution 30, the housing density and affordability study, was assigned to the Local Government Interim Committee and directed it to examine density incentives, state programs and property-tax implications. Its draft final report records that the committee “limited the scope of their work to only analyzing factors that have contributed to rising home costs,” and its conclusion section is blank. It has no bill draft attached to it.

What a board in a deed-restriction market should establish now

None of this is advice on any particular restriction, and the enforceability of a specific covenant is a question for counsel with the document in hand. What a board can do is know what it is holding:

• Identify any deed-restricted units in the community, and what instrument creates the restriction — a recorded covenant, a subdivision approval condition, a separate agreement with a municipality or a land trust.
• Find out who enforces it. Often not the association — and an association that assumes it has no role may still be the one asked to certify the restriction at resale.
• Check the resale certificate process against those units. Montana has no statutory resale-certificate regime; what gets disclosed is what the association chooses to disclose.

Worth noting that a statutory resale-disclosure regime is one of the things the pending Uniform Common Interest Ownership Act committee draft would create, with its title clause promising “PROTECTIONS FOR PURCHASERS” and processes for the sale of units. That draft goes to a committee vote on September 17, 2026.³