Title Tips - August 2015
TITLE TIPS BY JOE VITULLO - AUGUST 2015
RESTRICTIONS - Where, in conformity with a general plan of development, the owner of property divides it into building lots and conveys them subject to restrictions, intending to thereby promote a uniform plan of development for the plat consistent with such restrictions, any subsequent owner may enforce the restrictions against any other grantee or the present owner of such lots. Noonan v. Cuddigan, 85 R.I. 328, 131 A. 2d 241 (1957). Mutual servitudes are thereby created in favor of each parcel as against all the others. Bessette v. Guarino , 85 R.I. 188 (1957). The common grantor's intention to establish a uniform plan for development may be determined upon all of the facts and circumstances surrounding the development of the plat as well as from the substance of the restrictions set out in the conveyances. Clemence v. Mazika, 73 R.I. 254, 260, 54 A. 2d 379 (1947). By statute, a tax sale does not extinguish restrictions. R.I.G.L. 44-9-1 makes the real estate tax lien superior to any lien, encumbrance or interest, except easements and restrictions. Even a subsequent zoning ordinance cannot destroy the force and effect of a restrictive covenant. Hill v. Ogrodnik, 83 R.I. 138 (1955).
Recording a general Declaration of Restrictive Covenants serves as constructive notice to all persons of their content. Generally, restrictive covenants are to be strictly construed in favor of the free alienability of land while still respecting the purposes for which the restriction was established. Hanley v. Misischi, 111 R.I. 233, 238 (1973). As a practical matter, controversies involving the interpretation of restrictive covenants must be decided on a case-by-case basis. Hanley - Id. A person entitled to enforce the benefit of a restriction may extinguish this right by means of a recorded release, but all the benefited property owners, and their mortgagees, must join in the release in order to completely extinguish the obligation. Ashley v. Kehew, No. 2008 265-A (2010).
By reason of a R.I.G.L. 34-4-21, restrictions created after 5-11-53, if unlimited in time in the instrument, cease to be valid and operative thirty (30) years after execution of the instrument creating them. Also, under R.I.G.L. 34-11-41, the subsequent recital in a deed that a conveyance is "subject to restrictions" shall not operate to impose them or re-impose restrictions which have expired according to their terms or cease to be valid and operative by virtue of R.I.G.L. 34-4-21. The thirty year limitation in R.I.G.L. 34-4-21 does not apply to conservation or preservation restrictions held by a governmental body or charitable corporation, or a restriction requiring the provision of low income housing under R.I.G.L. 34-39-1.3. Also, any restrictions banning group homes for the mentally retarded or mentally disabled are invalid under R.I.G.L. 34-4-25 and the thirty year limitation does not apply to them.
Title deeds sometimes include restrictions which contain reverters. When a reverter is contained in a deed, the resulting estate is fee simple determinable. Reverters are provisions in deeds that cause the title to "revert" back to the grantor or his heirs under defined conditions. R.I.G.L. 34-4-19 provides that, with some exceptions, reverters recorded before 5/11/53 are not valid after 12/31/87 unless notice is recorded before 12/31/87. The statute allows reverters recorded after 5/11/53 to expire after twenty (20) years if there is no expiration date in the document itself and if possession of the property is not taken within twenty years. Importantly, properties that are leased, or that are owned by the state or public, charitable, or religious organizations, or railroads, or public utility companies are exempt from the limitation of R.I.G.L. 34-4-19. For example, property that is gifted or devised for use as churches, fire stations, schools or convents often have a reverter provision in the will or deed. The provision usually states that if the property ceases to be used for the purpose for which it was given, then the title shall revert to the heirs of the grantor. R.I.G.L. 34-4-19 does not apply to these grants or devises and the reverters remain in effect indefinitely.
With similar exceptions, the Rhode Island Marketable Title Act (R.I.G.L. 34-13.1-1) can extinguish restrictive covenants, whether or not they contain a reverter, created before or after 5/11/53. When a deed qualifies as a root of title, by being on record for forty (40) or more years, it will extinguish all prior outstanding interests in the land not specifically contained in the root deed or transaction itself. The statute states that a general reference to the restrictions in the root deed, without specific identification of the recorded instrument creating them, will not preserve them. Thus, a deed qualifying as a root of title, containing the reference "Subject to restrictions of record", will extinguish the prior restrictions in the title nevertheless.
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