Agenda - Council - 05/09/1995 - Laserfiche WebLink

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Page 2 JanUary I9, 1995 I I I' The- term "conveyance" is defined in Minn. Stat. §507.0A and includes "Every instrument in writing whereby any interest in real est~.te is created. ." The homeowners' alleged restriction would create an interest held by them in each lot of Windemere Woods. The~ nature of the interest would be the ability to prevent construction of homes without those minimum requirements or enforcing an improvement of homes to meet said requirements. Such a restriction would clearly fall within the definition of conveyance, because of the creation of an interest in real estate. TheSr claim that the restriction runs with the land, so as to bind successive good faith purchasers, is without merit because the restriction is not recorded.' Although no Minnesota case law is on all fours, a reasonable reading of Minn. Stat. §507.34 requires a restrictive covenant to be ~ecorded. This view has been approved in other jurisdictions such as shunk ¥. R~.I~ Beach County, 420 So.2d 394 (Fla. App. 1982). In Shunk the court decided that a covenant could not run with the la~d unless it appeared in the record chain of title. Requiring the recording of restrictive covenants is desirable because it fosters certainty of landowners' rights and obligations concerning their land. If the mere existence of an "informational handout" could create a restrictive covenant, the problems in proving existence or non-existence of such covenants would be impossible to solve. Informational handouts are capable of being altered, destroyed, amended and are subject to a host of other potential problems. These problems would severely complicate any determination of whether a new purchaser knew or should have known of ~ny restrictions. In iaddition to the inherently uncertain nature of the homeowners' position, the alleged restriction does not find favor with the policy oft his State regarding restrictive covenants. Restrictive covenants are strictly construed against limitations on the use of property, and since the law favors the unrestrictlve use of property, the courts do not adopt a strained construction in favor of~ restrictive covenants, costly v. caromin ~ouse. Inc., 313 N.W.2d (Mirnu. 1981). Such restrictions will not be aided or ex~ended by implication, or enlarged by construction, and doubt will be resolved in favor of the unrestricted use of property. Mission. Covenant Church v..Nelson, 91 N.W.2d 440 (Minn. 1958). In!view of the policy of this State, and the fact that the alleged restriction is not recorded, the conclusion must be that no enforceable covenant or valid restriction exists. I I I I I I I I I I I I