Common Law Jurisdictions: How does one, in theory, eliminate a covenant running with the land?

Factual Questions
1

No specific jurisdiction is indicated. References to cases where it actually has happened would be interesting, but WAG’s from attorneys or even non-attorneys would be acceptable.

Is it possible, in theory, to eliminate covenants that run with the land? E.g. if I purchase every single property in a HOA district (gaining 100% of the vote of the HOA), and I decide to abolish the HOA and vacate all the covenants on the properties requiring hedges to be trimmed monthly, forbidding paint colors other than the ones in the HOA rulebook, etc., and build myself a big fat castle, would it be possible, or am I forever beholden to an organization that I myself run?

Or, if William Jansen sells Manor Glen to Herbert McDonald with a restrictive covenant that the old house must not be torn down and that the Catholic Church must be allowed to hold services in the shed, and then Herbert McDonald sells the property to your mom, who sells the property to Neighborhood Property Investments, Inc., who sells it to George Peterson, who sells it to me, and I want to knock down the old house and kick the Catholic Church to the street, could I do it if I was able to track down William Jansen and get his permission to vacate the covenant, or, if he is dead, track down his firstborn male heir or whatever, or is the property SOL forevermore?

2

It is possible to eliminate a restrictive covenant that runs with the land.

Generally speaking, you make a motion or application to a court, and if the judge allows it, the covenant is lifted. In theory, it’s fairly easy.

In practice, it can be more difficult. Depending on jurisdiction (and the rules in place in that jurisdiction), there may be specific steps to follow, affidavits to file, proper service upon all necessary parties to be effected, and enough time given to all parties in order to prepare for an oral hearing. For details of how to do this, you should, naturally, consult a lawyer licensed to practice in the applicable jurisdiction. In the end, there is no guarantee that the covenant will be lifted–the judge will decide, one way or the other, based on the arguments and documentation presented.

Your hypothetical, speaking as it does about the Catholic Church, is difficult to even guess at. Does the Church use the shed for services? If not, has it any interest in doing so, now or ever? If the Church has zero use of the land, and hasn’t for (say) fifty years through four owners, does it still have a right to (i.e. has the Church’s right under the covenant been extinguished by time and/or disinterest)? All good questions. You should note also that as times change, so does public policy; and a number of restrictive covenants that might have been okay at one time (typically involving religion, race, etc., such as, “this land shall never be sold to Jews” or “only whites may own this land”) have been struck down because they are contrary to today’s public policy. I also am unsure if a restrictive covenant barring the demolition of the house is reasonable or even enforceable–what if the house is improperly maintained and thus must be torn down as it presents a safety hazard? So it is difficult to answer your hypothetical.

A better example that would not involve the above matters of public policy might involve a restrictive covenant that dictates how far back from lot boundaries a building must be set, or the type of house that may be built (e.g. only split-levels or two-storeys, no one-storey bungalows). At any rate, you would not have to go looking for the person who placed the covenant (who may be long dead) to vacate the covenant–you would simply head for court.

3

In the case of a Home Owners Association, or a Property Owners Association, you need to get a copy of the Codes, Covenants and Restrictions that are part of the deed. Buried in the many pages of boring stuff, there will usually be some provision for the majority needed to supercede the CCR.

The sad thing about THAT is if someone is in the minority and really doesn’t WANT the CCR set aside. That owner is SOL.

Covenants dealing with a single property are different. Some covenants are illegal today, and therefore have no enforecement. One such as yours in the hypothetical situation could probably be set aside. It would take money and lawyers, though.

This just reinforces the adage that the buyer must beware. As a prospective property owner, it is your responsibility to find out what you can and cannot do. You need to educate yourself as to any municipal requirements (permits, setbacks, etc), any rights which are NOT conveyed with the deed (mineral rights and water rights are two biggies), and any easements AGAINST the property.

It’s a cruel world.
~VOW