Application of Restrictive Covenants: Must the Covenants Be Expressly Laid Out in the Deed?
Rakowski v. Committee to Protect
A committee to protect subdivision homeowners’ rights and preserve park sued the subdivision association and developer. The committee sought to prevent he association from selling the park to the developer, who intended to use it for commercial purposes. The district court ruled for the developer and the association in finding that the association, as the holder of title, had the right to sell the park. However, judgment in favor of the plaintiff found that the subdivision’s restrictive covenants prohibited any commercial use of the park. Both parties appealed.
The first issue that the association and developer (appellants) raised on appeal was whether the subdivision restrictive covenants applied to the park, mandating a recreational use only. The appellants claimed the restrictions did not apply to the park because the park was not within the platted boundaries of the subdivision; the restrictions were not in the deed that transferred the park to the association; the restrictions’ enabling language stated they applied to the subdivision only; and subsequent owners could buy without restrictions.
The court first stated that while the park may be outside the subdivision tract, it is clearly part of the plan or scheme of the development because the recorded map mentions it as “recreational area.” Also, even if the restrictions were not in the deed, a property may become subject to restrictions in other ways: by grant; express reference in conveyance documents; or constructive knowledge of the restrictions. The court also dismissed the enabling language and subsequent purchasers contentions, finding that none of the provisions supported the conclusion that the recreational use restriction did not apply to the park.
The second issue on appeal was whether the association had title to the park. The committee claimed the association did not have title because the person who transferred the title did not have conveyable interest. The association responded that the committee had no standing to challenge the ownership of the park because it had no claim to ownership of the park. The court agreed with the association. For the committee to have a real interest or standing to contest these issues, the association had to own the park, which the committee denied. Because the committee’s challenge could not be sustained unless the committee was found without standing, the court affirmed that the association owned the park.
The dissent stated that the committee did not lack standing to contest any issues concerning the park’s ownership based on the committee’s position as to who owns the park. Also, the dissent found that the trial court erred in granting summary judgment to the association because there were still issues of fact as to whether the transferor of the park had conveyable interest in it.
This site and any information contained herein is intended for informational purposes only and should not be construed as legal advice. Seek a competent attorney for advice on any legal matter.
Posted by Ryan McCabe at 2/23/2009 8:41 AM 
Categories: Homeowners Association, Standing, Covenant Enforcement, Covenant Creation
Categories: Homeowners Association, Standing, Covenant Enforcement, Covenant Creation
Comments