Recorded covenants can run with lands the grantor does not own if owners of those lands ratify the covenants

The Utah Supreme Court has held that a landowner who recorded covenants on land he did not own were potentially binding on subsequent owners of that land if they engaged in acts that ratified the covenants (for example, by making payments to the homeowners association (HOA)). WDIS, LLC, as Trustee of MDMG Trust, dated Apr. 25, 2016 v. Hi-Country Estates Homeowners Ass’n, Phase II, 2022 UT 17, 2022 WL 1252425 (Utah 2022). Oddly, the grantor who recorded the covenants owned only eight acres out of the 2000 acres that were purported to be limited by those covenants. Ordinarily, one landowner cannot unilaterally impose covenants on owners of neighboring property. But the Utah Supreme Court held that those covenants were not absolutely void but merely voidable because owners could ratify those covenants after acquiring title to their properties. It did not seem to matter to the court whether all the owners derived their titles from land originally owned by that landowner who initially created the covenants.


The case is strange because owners are not generally bound by covenants on their property unless a former owner in their chain of title agreed to those covenants. Usually a declaration of covenants covers property owned by the grantor and, if recorded, will bind subsequent owners of those lots when they are sold because they are on constructive notice that the property they are buying will be bound by those covenants. It is exceedingly unusual to attempt to impose covenants on property one does not own at the time one files those covenants in the registry of deeds.


In effect, the court is allowing informal actions (perhaps paying fees to the homeowners association, participating in HOA elections, etc.) to potentially constitute “ratification” that is the equivalent of agreeing to be bound by those covenants. This is different from, but reminiscent of, the doctrine of implied reciprocal negative servitudes which imposes covenants on property that does not have those covenants in the chain of title when an owner sells many contiguous parcels and most of them have similar restrictive covenants in the original deeds. In that case, owners are bound even if they have not ratified the covenants in order to protect the reliance interests of their neighbors who were led to blieve that their neighbors would be bound by those covenants. The WDIS case also protects reliance interests but focuses on informal actions that constitute acquiescence or ratification of covenants enforceable by their neighbors.


Another case that demonstrates conflicts among property claims that must be resolved by courts using a combination of formal and informal sources of justified expectations. There is no guarantee that the court will find that ratification occurred, just that this is not precluded entirely.