Is an unrecorded restriction on a sales contract binding on future buyers in AZ?

We purchased vacant land 15 years ago in Maricopa County, AZ. On the sales contract counter offer the seller who lived adjacent to the property at the time, put the following ‘This property restricted to home with minimum of 2500 sq ft living area of southwestern style.’ which we agreed to. The seller has since moved and there is no recorded restriction on the deed or any evidence of the restriction in public record. The only place it appears is the original sales contract. I have secured a buyer who wants to put a 2000 sq ft house on the property, There is no homeowners association, it is just open land. The seller’s intent was ‘I don’t want to look out my window and see a mobile home up there.’ The buyer contacted Maricopa Planning and was told there are no restrictions on the property. He’s satisfied, but we do not want a future problem to creep up. Can the seller’s requirement to us be enforced on our buyer? Does the restriction pass with the property? Who could enforce it?

Asked on August 31, 2018 under Real Estate Law, Florida

Answers:

M.D., Member, California and New York Bar / FreeAdvice Contributing Attorney

Answered 2 years ago | Contributor

An property restriction is not binding on any future purchasers unless contained in the deed or other properly recorded instrument. In other words, a restriction appearing only in a contact of sale is not binding on others as that would only be enforceable against the actual parties to the contract.

SJZ, Member, New York Bar / FreeAdvice Contributing Attorney

Answered 2 years ago | Contributor

No, an unrecorded restriction (e.g. one not on the deed and not filed with the county) is not binding on future buyers. If the restriction only appears, as you indicate, in the contract of sale, then it was a contractual obligation only between the two of you, and a contract is not binding on non-parties to it; it only binds the people who were part of the contract. You were restricted; those you sell to are not.


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