How does a subdivision covenant work if no successors are recorded?

Question

I am purchasing a home and would like to install a fence. The original covenants, from 1975, specify you must get approval from the architectural control committee, but all the listed trustees are dead, and the Recorder's office has no further records on the subdivision.

The covenants state they are valid for 25 years after which they automatically renew for successive 10 year terms.

Can covenants be sort of "forgotten about" and have no enforceability? Can I just do the exterior work I want to and not worry about "someone" coming after me for doing so?

Answer 1

Can covenants be sort of "forgotten about" and have no enforceability? Can I just do the exterior work I want to and not worry about "someone" coming after me for doing so?

This is possible but risky. If you build a fence and no one does anything about it within the statute of limitations for doing so (sometimes codified with "adverse possession" laws), you could get lucky. But if you don't, you could be in a bad position and might have to tear down the fence and pay the attorney fees of the complaining homeowners. The statute of limitations for a covenant violation in Missouri is as follows:

516.095. Action for breach of covenant restricting land use, barred, when. — No action for breach of a covenant restricting use of land caused or resulting from the size, height, cost or location of buildings or other visible improvements on the premises in violation of the covenant, including a proceeding to compel the removal of buildings or visible improvements on the land because of the violation of the terms of the covenant, shall be commenced after two years from the date this section takes effect or from the date when the right of action accrues, whichever is the later. Notwithstanding the provisions of any section of the statutes tolling the statutes of limitations, saving any causes of action which may have been otherwise barred thereunder, establishing a time when a cause of action accrues, or excluding certain lands from the operation and effect of any statute of limitations, no disability or lack of knowledge on the part of anyone shall suspend the running of the two-year period; and for the purposes of this section, the right of action shall be deemed to accrue immediately upon the completion of the building or visible improvements which are in violation of the covenant.

Real estate covenants "run with the land" and are not subject to automatic expiration after a period of time, although there is a deadline to enforce acts taken in violation of the covenants. And, often, any property owner in the subdivision can enforce a covenant violation, even though only the HOA in operational good standing can continue to operate it and approve changes.

It may be necessary to resurrect the HOA and architectural control committee to obtain approval. It might also be possible to get the neighbors to agree to abrogate and terminate the covenants.

Answer 2

australia

If you can’t get permission, you don’t have permission

The covenant benefits the land, not any particular owner or any other interested party (in general, they can, of course, be worded the other way). The death or dissolution of someone involved in the covenant doesn’t change the covenant. See Hawthorn Road Pty Ltd v Krystyna Duszniak & Ors; in that particular case the power to waive the covenant rested with a dead person and did not transfer to her heirs and assignees - they owned the land but they could not change the covenant.

Your covent states that you must get permission from the “architectural control committee”. You can’t find them. Therefore, you don’t have permission.

Were you to proceed anyway, you run the risk that someone with standing might sue and probably win. This might be the “architectural control committee” or someone else like a current or future neighbour, or a local government. Only you can assess how likely this is and whether operating outside the law is worth it.

Depending on your local laws you might be able to go to court to have the covenant formally extinguished. There is, of course, no certainty you would prevail.