Removing restrictive convenants for non-existent entity from property

[Ogre01]

Jurisdiction

Missouri

In relation to a 20 acre single parcel of property in an unzoned County (i.e. no building / property restrictions). **I'm not the buyer, my kin is, this is more a thought exercise for me** In 2003 the Owner of the property apparently intended to develop the parcel into single lots, with that, he placed restrictive covenants on the original parcel, no subdividing occurred. The covenants referenced a subdivision name (lets call it Treed Hill Acres), and a property Owner's association for Treed Hill acres, or any assigns or heirs thereto, expiring 20 years after filing date (actually 2004). The issue is, the land was never subdivided, Treed Hill Acres the entity was never created, no preliminary plat ever filed and the legal desc. of Treed Hill Acres is the subject property. I surmise guy started looking at development costs and ultimately took no further action after filing these deed restrictions; including never building for himself.

At some point he sold the property, (intermediate ownership not researched) which then sold into a co-Owner situation who are the current sellers (will be a clean transaction as far as that goes). So the responsibility of enforcement of restrictions goes to the Property Owner's Association (Treed Hill Acres) of a single parcel. As "we" are the current owner, can we file to have those documents "de-recorded?), as they continue by this recorded document until next year, would we need to file amended restrictions as the POA removing all previous restrictions?

My kin is just building a nice vacation cabin on the site. The County literally doesn't care what gets built (it's bizarre but true, State regulates wastewater disposal systems). And frankly, its not likely to even start until these restrictions self-expire. Like I said at the beginning, this is more a thought exercise with me, though we can certainly hire a lawyer to file if recommended. I've just never come across a situation like this and am curious about legal remediation.

 

[Zigner]

And frankly, its not likely to even start until these restrictions self-expire.

The question, even as a "thought exercise," seems moot.

 

[Ogre01]

I just read the restriction more closely, it's not yet moot...

These restrictions and covenants are to run with the land and shall be binding upon the parties thereto and all persons claiming under them for a period of twenty-five (25) years from the date these restrictions are recorded, after which time said restrictions shall be automatically extended for successive ten (10) years unless an instrument signed by the then owners of a majority of the lots covered by these restrictions have been recorded agreeing to change the restrictions in whole or in part.​

So even building next year, these recorded restrictions will last until 2029. So, can these be removed from the property if the entity described in the document, never existed?

 

[Zigner]

GIGO

Your kin should consult with a local land-use attorney who can give accurate advice based on all of the (actual) facts.

 

[adjusterjack]

we can certainly hire a lawyer to file if recommended.

It's recommended.

You'll need one to do a review of the entire document and advise you of your options.

 

[adjusterjack]

GIGO

Good use of the acronym.

 

[welkin]

As "we" are the current owner, can we file to have those documents "de-recorded?), as they continue by this recorded document until next year, would we need to file amended restrictions as the POA removing all previous restrictions?

There is no such thing as de-recording a document previously recorded on a parcel of land. The chain of title and any restrictions on the land, that run with the land, can't be changed going back. It can only be changed going forward.

There is a question about whether or not the covenant is even enforceable because it serves no purpose since the subdivision never happened and the POA was never formed. Second, Missouri authority provides that a restrictive covenant in a deed may be reformed only on the bases of fraud or mistake.

Third, who would enforce the covenant? What usually happens when there is a restriction on a deed, someone has to file suit to get it enforced. And since there is no one affected by violating the covenant, there is no one to file suit.

I suggest (as others have) that you speak to an attorney if you think you need to do something. A court could void the covenant if it has no purpose and nobody would be affected by its enforcement or not.