I would have to be representing the seller, otherwise the buyer would have notice. If so, if the seller said, “I sure would like to get rid of this covenant,” I would run this plan by a few other attorneys. If none of them could come up with more compelling reasons beyond “Sounds dangerous! … For reasons I can’t quite articulate.” then yes, I would greenlight it.
What do you think would happen? Zombie racially restrictive covenants attacking me in the night? Dissatisfied purchasers coming back saying “Do over! There was an unenforceable ‘No negroes’ clause that Kimmy Gibbler didn’t tell us about!” I’m made of tougher stuff.
I think the question would be hard to answer, as it is entirely dependent on state law. I just checked Florida - there the restriction has to be removed.
What about the idea that a purchaser could come back and say that their property is less valuable than they thought because of this covenant? Since it is nearly impossible to be removed, and even though it has no effect, perhaps there are potential buyers who will not be interested since this clause offends their sensibilities? And the buyer was not informed about the clause. Fraud! Deceit! Show me the money$$$.
Somewhat the reverse, but do I correctly recall that a white of African descent successfully challenged a refusal to grant him or her a scholarship which was intended for black Afro-Americans? Thus establishing legally the presence of white Afro-Americans.
If I was successful in keeping knowledge of the covenant away from the buyer, his sensibilities cannot be offended: he is not bound if he had no notice at the time of the conveyance. I shall have effectively killed the covenant as to that parcel.
I’m surprised the other lawyers here are so disbelieving. Remember how JTWROSs can be destroyed by selling the property to your lawyer’s secretary and buying it back at the same office visit. Because it destroys the FOUR UNITIES!!!* This isn’t any more ridiculous, and I dare say, much less so.
I always do jazz hands and draw out the “U” in unities when I say this aloud. Just to emphasize what a dumb concept it is.
The point I was trying to make was that these types of things shouldn’t be done except in the most extreme of circumstances. An unenforceable, illegal “no blacks” policy that no one thinks should be in the agreement, and even less would publically protest its removal, is far different from any pet peeve currently the issue-of-the-day for an overly oppressive HOA president.
We banned slavery and racial discrimination. Does it follow that soon we’ll ban all servitude, even legal paid ones, and force peopel to wear glasses so that they see all races as the same color? No, that would be a silly stretch to make. If I were the HOA president, I would have no problem possibly overstepping my bounds to get race restrictions out of the charter. It would speak a lot more of a person if that person decided to use that as some kind of reason to fight a legitimate punishment. I wouldnt count on any mediation, judge, or jury to rule in their favor
I’m wondering if this could be done by a valid collusive suit. Seller holds land up for sale subject to illegal restrictive covenants. Buyer agrees to buy landf at agreed price (after negotiations, of course) free of illegal covenants. Seller then vends title to land including illegal covenants. Buyer protests; seller responds that he is obliged to include the illegal covenants as they run with the land, even though not enforceable. Buyer then sues seller, with seller’s connivance, to require him to vend land free of illegal covenants. In court, seller states his willingness to do so if it were legal but indicates his obligation to include the covenants, even though they are unenforceable. Buyer then asks the court for an action to quiet title, enabling seller to vend land free of illegal covenants. Court grants motion, seller signs over land free of covenants, everybody is happy.
It needn’t be that hard. In places where legislative solutions aren’t in place and where a person is genuinely offended by the covenant, petitioning a court for removal should work well, especially as the covenant not only has no legal force but hasn’t for decades now.