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Restrictions Not Listed in Deeds for Last 30 Years

by Chris Pierce
(Pittsburg, OK)

Visitor Question: Our planned community had a land owner who filed for plats and recorded covenants and restrictions that govern the property. This happened 35 years ago. The owner sold to developers.

When the developer wrote deeds for the property to an initial purchaser, the legal description only references the plat, and not the recorded covenants and restrictions. The same legal description originally used by the developer is what is used in the subsequent deeds up until today.

Thus, the covenants and restrictions are not found in the chain of title for the particular lot.

Is the covenant still binding since 30 years has passed?

Editors Reply: Unfortunately we cannot give you a final answer since we are not attorneys, not practicing in Oklahoma, and not aware of all of the facts. But our comments below about typical conditions will help you shape your thoughts and help you have a more productive conversation with an Oklahoma attorney, if that is what you decide to do.

In general, courts in the U.S. say that the deed restriction is still valid whether or not it is repeated in a deed or other document supplied to the buyer in any particular real estate transaction. So we doubt whether the fact that the developer did not repeat the restriction in deeds when he or she started selling would mean that the covenants and restrictions are not valid today.

When covenants are not supplied to buyers, it is indeed unfortunate, especially if title companies and real estate agents know better. However, usually courts uphold the right of a property owner to impose restrictions that last forever until changed by a method set forth in the restrictions.

This last sentence then raises the question of whether your CC&Rs give a process for how they may be amended or updated. If so, that is good news for homeowners, but our mail brings us a story every few weeks of someone whose covenants give no clue as to how they can be changed.

The other possibility is that either the CC&Rs themselves or Oklahoma statutory law or case law give an expiration date. If you do not have a copy of the exact language of the CC&Rs, by all means obtain that now, using an in-person trip to the county courthouse if necessary. If these include an expiration date, that will be your answer.

(Another possibility that you might discover at the courthouse is that the developer had every right to nix the original covenants at some particular milestone in the development process, and did so.)

If not, you have to decide how important this matter is to you. Is it worth the time and probably the expense of consulting an attorney? You didn't mention whether there is an active home owners association; if so, the HOA should bear this expense and undertake the clarification.

If there is no HOA and you are just curious, you should assess how you feel about the CC&Rs. If you like them, you could always resolve to repeat them when you sell your property, and encourage neighbors to do the same.

If this question is coming up because you dislike one or more provisions of the CC&Rs, or are finding them difficult to follow due to current conditions, then you or a group of you should talk to an attorney about changing them if the covenants themselves do not give you a reasonably easy way to make changes.

By the way, it is not typical in the U.S. to have covenants included in the legal description itself, although often there is a catchall phrase in or near the legal description concerning that the description is subject to all other legal restrictions and regulations. Nonetheless the existence and exact wording of the restrictions should be provided to home buyers as early as practical in the real estate transaction.

These are the most important things to consider as you ponder this question.

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