Agenda - Council - 05/23/1995 - Laserfiche WebLink

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I I I I I I I I I I I I I I I I I I I 3RH E4 '~5 0~:~4 R~MDRLL I Page 2 January 19, 1995 The term "conveyance" is defined in Minn. Stat. §507.01 and includes "Eve:~ instrumeat in writing whereby any interest in real estate is cres~ted. " The homeowners' alleged restriction would create an int.~rest'h~ld 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 restrictio~ would clearly fall within the definition of conveyance, because of the creation of an interest in real'estate. Their claim that the restriction runs with the land, so as to bind successive go~d faith purchasers, is without merit because the restriction i~ not recorded. Although no Minnesota case law is on all fours, a reasonable reading of Mi~n. Stat. §507.34 requires a restrictive covenant to be recorded. ~This view has been approved in other jurisdictions such as shunk ~. Palm Beach County, 420 So.2d 394 (Fla. App. 1982). In shunk the ~ourt decided that a covenant could not run with the land unless i~ appeared in the record chain of title. Requiring thel recording of restrictive covenants is desirable because it fo~ers certainty of landowners' rights and obligations concerning their land. If the mere existence of an "informational handout" coul~ create a restrictive covenant, the problems in proving exist~nce or non-existence of such covenants would be impossible to solve. Informational handouts are capable of being altered, dest~oyed, amended and are subject to a host of other potential prok,lems. These problems would severely complicate any determination of whether a new purchaser knew or should have known of any restri¢.tions. In addition tc the inherently uncertain nature of the homeowners' position, the~ alleged restriction does not find favor with the policy of thiSState regarding restrictive covenants. Restrictive covenants are strictly construed against limitations on the use of property, and since the law favors the unrestrictive use of property, the =ourts do not adopt a strained construction in favor of restrictiv~ covenants. Costly v. Caromin ~u~e, Inc., 313 N.W.2d (Minn.. 1981). Such restrictions will not be aided or extended by implication, or enlarged by construction, and doubt will ba resolved in favor of the unrestricted use of property. ~issiQ~ Covenant Church v. Nelson, 91 N.W.2d 440 (Minn. 1958). In view of theipolicy of this State, and the fact that the alleged restriction iS not recorded, the conclusion must be that no enforceable c~venant or valid restriction exists.