If a Minnesota township acquires a residentially-restricted lot from the state through tax forfeiture, can the township override the restriction and use the lot as a public park?
Plain-English summary
A parcel of platted land in Credit River Township had forfeited to the State of Minnesota for failure to pay taxes. The Township wanted to acquire the parcel for use as a public park, which is an authorized public purpose under Minn. Stat. § 282.01, subd. 1a. Scott County notified the Township that it could acquire the parcel, but residents of the surrounding Cress View Estates plat objected. The Cress View Estates Declaration, recorded with the County and less than 30 years old, said no lot in the plat could be used "except for private, residential purposes."
Township attorney Robert T. Ruppe asked the AG whether the conveyance from the state, made for a specific public purpose, would override the recorded private-residential Declaration, or whether the Declaration survived the tax forfeiture and bound the Township as the new owner.
The AG concluded the Declaration survived. Minn. Stat. § 282.01, subd. 6 (2012) says the state's conveyance of tax-forfeited land "shall have the full force and effect of a patent from the State subject to easements and restrictions of record at the date of the tax judgment sale." The Declaration was an "easement and restriction of record" under the plain meaning of the statute. The Township therefore took title to the parcel still bound by the residential-use restriction. Using the parcel as a public park was prohibited.
The opinion noted that no case had decided whether a state's conveyance of tax-forfeited land for a specific public purpose could supersede a recorded covenant. Absent such authority, the AG applied the statute as written. The Minnesota Supreme Court's general rule that restrictive covenants are given their plain meaning when unambiguous (LaValle v. Kulkay, 277 N.W.2d 400, 403 (Minn. 1979)) further supported the conclusion.
Currency note
This opinion was issued in 2013. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.
Historical context: what the AG concluded
The AG's analysis was short. The chain went:
- Section 282.01, subd. 1a authorizes a township to acquire tax-forfeited property for a public purpose like a public park.
- Section 282.01, subd. 6 says the state's conveyance "shall have the full force and effect of a patent from the State subject to easements and restrictions of record at the date of the tax judgment sale."
- The Cress View Estates Declaration was recorded in the County Recorder's office, less than 30 years old (so unaffected by Minnesota's marketable-title-statute clearance), and on the parcel before the forfeiture.
- The Declaration is, on its face, both an "easement" and a "restriction of record." It limits use of every lot to "private, residential purposes."
- Therefore the state's conveyance to the Township carries the parcel subject to that restriction. The Township cannot use the parcel as a public park.
The Township's framing implicitly asked whether the public-purpose acquisition under § 282.01, subd. 1a should override a private restriction. The AG found no precedent for that. The state's conveyance is unambiguously made subject to recorded encumbrances, and § 282.01, subd. 1a does not contain language overriding subd. 6.
The AG cited LaValle v. Kulkay, 277 N.W.2d 400, 403 (Minn. 1979), for the proposition that a restrictive covenant is given its obvious meaning when the language is clear. The Declaration was clear. The AG did not need to construe ambiguity.
The bottom-line direction to Credit River Township: do not acquire the parcel for park use under the assumption the Declaration would lapse. The Township could either (a) acquire and use for a different purpose consistent with the Declaration, (b) attempt to extinguish the Declaration through negotiation with the affected lot owners, or (c) seek judicial extinguishment. The opinion did not endorse any of those paths, and it did not address any of them. It answered the narrow legal question put to it.
Common questions
Q: Could the township have used the parcel for residential housing instead?
A: The Declaration limited use to "private, residential purposes." A township-owned single-family rental would face a question whether it counts as a "private" residential use. The opinion does not analyze the ambiguity between "private" and "publicly-owned residential." A township pursuing this path would have wanted independent legal advice on that point.
Q: Are there any tax-forfeit conveyances that strip out recorded covenants?
A: The opinion answers no for restrictive covenants and easements of record at the tax judgment sale date. Tax forfeiture in Minnesota does typically extinguish prior monetary liens (taxes, mortgages, judgments), but use restrictions and easements are treated differently. The opinion's plain reading of § 282.01, subd. 6 says they survive.
Q: What if the Declaration had been recorded after the tax judgment sale?
A: The statute ties the surviving restrictions to those "of record at the date of the tax judgment sale." A Declaration recorded after that date would not bind the Township.
Q: Does this opinion bind future tax-forfeit acquisitions?
A: The opinion is advisory, not binding. But it would be persuasive to a Minnesota court asked the same question, and it tracks the statutory text closely enough that a court would likely reach the same conclusion absent some factor not present in this case.
Q: If the residents lifted the restriction, could the township then use the parcel as a park?
A: Yes, in theory. Restrictive covenants can be modified or extinguished by the procedures spelled out in the Declaration itself, by agreement of the benefited lot owners, or in some cases through litigation. The opinion does not analyze the Cress View Declaration's amendment procedure.
Q: What about the Minnesota Marketable Title Act? Wouldn't an old Declaration eventually drop off?
A: The opinion notes the Declaration was "less than 30 years old," which is the relevant period under Minnesota's marketable-title scheme for residential covenants. A Declaration older than 30 years could have a separate Marketable Title Act argument. Anyone applying this opinion should check current Minn. Stat. ch. 541 limits and whether the Declaration in question has been re-recorded.
Background and statutory framework
Tax-forfeited land in Minnesota is governed by chapter 282. When a parcel forfeits to the state for non-payment of property taxes, the state takes title. The Commissioner of Revenue can convey the parcel to a county, city, town, school district, or other public entity for a public purpose under § 282.01, subd. 1a. The conveyance is treated as a state patent.
Section 282.01, subd. 6 (2012), the key provision in the opinion, attaches a fundamental qualifier to that patent: it carries with it "easements and restrictions of record at the date of the tax judgment sale." That qualifier is the operative reason the Declaration survived.
The Cress View Estates Declaration in this matter was a typical residential subdivision covenant. It declared that the lots within the plat were owned, used, occupied, and conveyed subject to a set of covenants, restrictions, easements, charges, and liens. One of those was the restriction to "private, residential purposes" only.
The opinion is signed by Assistant Attorney General Samantha K. Juneau on behalf of AG Lori Swanson.
Citations and references
Statutes:
- Minn. Stat. § 282.01, subd. 1a
- Minn. Stat. § 282.01, subd. 6 (2012)
Cases:
- LaValle v. Kulkay, 277 N.W.2d 400 (Minn. 1979)
Source
- Landing page: https://www.ag.state.mn.us/Office/Opinions/
- Original PDF: https://www.ag.state.mn.us/Office/Opinions/425c11-20130418.pdf
Original opinion text
TAX SALES: FORFEITED LAND: PURCHASE BY MUNICIPALITY: Conveyance of tax-forfeited land by the State of Minnesota to a Township for public park purposes does not supersede a prior Declaration on the property restricting the use of the property to private, residential purposes and therefore, use of the property as a public park is prohibited. Minn. Stat. § 282.01, subd. 6 (2012).
425c-11
April 18, 2013
Mr. Robert T. Ruppe
Couri & Ruppe, P.L.L.P.
705 Central Avenue East
P.O. Box 369
St. Michael, MN 55376
Re: Request for Opinion/Survival of a Declaration after Tax Forfeiture
Dear Mr. Ruppe:
I thank you for your correspondence received February 28, 2013, requesting an opinion of the Attorney General's Office regarding the survival of a declaration after property has been forfeited to the State of Minnesota for non-payment of property taxes.
BACKGROUND
You state that Credit River Township has been informed by Scott County that a property in the Township has been forfeited for failure to pay taxes, and that the Township could acquire the property provided it puts the property to public use under Minn. Stat. § 282.01, subd. 1a. The Township desires to acquire the property for public park purposes and has notified the County that it intends on acquiring the property for public park purposes, which is an authorized public use under Minn. Stat. § 282.01, subd. 1a. The property is platted property and is subject to the Cress View Estates Declaration ("Declaration"). The Declaration is recorded in the County Recorder's office and is less than 30 years old. Residents of the Plat of Cress View have informed the Township that they object to the use of the property as public park as the Declaration states that no lot shall be used except for private, residential purposes. The Township recognizes that any conveyance of tax-forfeited property from the State is subject to "easements" and "restrictions of record" at the date of the tax judgment sale pursuant to Minn. Stat. § 282.01, subd. 6.
Based upon the foregoing facts, you ask if the conveyance to Credit River Township of the tax-forfeited parcel located within the Plat of Cress View Estates for public park purposes is subject to the restriction on use contained in the Cress View Estates Declaration.
LAW AND ANALYSIS
Minn. Stat. § 282.01, subd. 6 (2012), states that conveyance of tax-forfeited land by the Commissioner of Revenue "shall have the full force and effect of a patent from the State subject to easements and restrictions of record at the date of the tax judgment sale." Based upon the facts in your letter, it is undisputed that the Declaration was of record and that the property was subject to the Declaration prior to the forfeiture of the property to the State for non-payment of property taxes. Thus, the question essentially is whether the Declaration is an "easement or restriction of record" within the meaning of Minn. Stat. § 282.01, subd. 6, and if so, whether the property is subject to the restrictions found in the Declaration.
We are not aware of any case that has determined that the State's conveyance of tax-forfeited land for a specific public purpose supersedes an existing easement or restriction of record on the property. The Declaration states it "constitutes covenants to run with the Property, and further declares that the Property... shall be owned, used, occupied and conveyed subject to the covenants, restrictions, easements, charges and liens set forth in this Declaration...." Because the Declaration is an easement and restriction of record within the plain meaning of Minn. Stat. § 282.01, subd. 6, the tax-forfeited property remains subject to the Declaration upon conveyance by the State. A restrictive covenant will be given its obvious meaning where the language used is clear and unambiguous. LaValle v. Kulkay, 277 N.W.2d 400, 403 (Minn. 1979). The plain language of the Declaration limits the use of the lots to private, residential purposes.
CONCLUSION
It is our opinion that use of the property for public park purposes is prohibited by the Declaration.
Sincerely,
SAMANTHA K. JUNEAU
Assistant Attorney General
(651) 757-1474 (Voice)
(651) 297-1235 (Fax)