Thursday, March 26, 2009

restrictions...for heavens sake, get a copy and read them!

I've had a nice e-mail exchange this week with a reader who wondered why her title insurance agent had never told her about the restrictive covenants for the housing plan in which she lived.

The lots in this plan are large and were meant to be used for residential purposes only. A neighbor, unaware of the restrictive covenants, started farming on their lot and added livestock. Our reader, also unaware of the restrictive covenants, has suffered for years battling with the neighbor over noise, smell, and general degradation of their use and enjoyment of their real estate. Only recently did our reader discover the restrictions and realize that the homeowners in the plan had legal standing all along to deal with the farm problem.

Read this, please, so you can understand how very important it is to select a title insurance provider who will give you a copy of the title commitment prior to closing along with copies of restrictions. Ask for these copies when shopping for services and then follow up to make certain you are getting a full and complete report BEFORE you close.

We found out last year that there are legally filed deed restrictions on our property that can be enforced by the property owners at the county building (we have a defunct Association) the restrictions effect all the other properties where we live (39/10 acre parcels) the deed restrictions run with the land and keep going every 10 years unless the majority of land owners vote them out etc which has not happened so people owning the land can enforce them. We were not given any of this info. when we bought our property by either the title company, the realtor nor the people we bought from - we bought it in 1998 and started building our house.

Last summer we had more continued issues with our neighbors who have livestock and poultry and started their farm after they moved out - about a year after us (improper disposal of manure is what they did last year), when they first moved out in 1999 we had issues too with them letting their sheep run all over the place and on our property (they have 30 acres we have 10) we found out about the deed restrictions by a friend who told us about such a thing when I was complaining about their farm. We had no idea there even was such a thing as we had never owned like this before. Well, I did the research and within one day I found the documents filed legally at the county building and they have been there since the 70's -our neighbors should never have put a farm in and had we known we could have stopped it right at the beginning and not be in this horrible situation where we have to smell manure, listen to roosters and cows and sheep and see their cows and barns (that they shouldn't have either) from our living room window. We do not know if they were told about the deed restrictions. Others who bought property way before we did received the deed restrictions when they bought their land. I've been told we could have a suit against our title company for not giving those to us and that we could get them to pay for all the harassment and loss of enjoyment of our property, the decreased value we now face due to the farm practically in our back yard and the cost of making our neighbors abide by those restrictions and remove the farm they shouldn't have. (we should not have to pay thousands to do this!) We have had a huge hassle to endure due to this, we were even told that we may have a suit against our neighbors title company if they didn't tell them.. our neighbors tried to file a harassment suit on us because we called the MDA on their improper disposal of manure, (yea they considered us calling the MDA harassing them of course the sheriffs dept told them they had no grounds for their attempted charges the MDA found them in violation and made them clean up the manure) they were putting bob cats buckets full of cow, horse, sheep manure right next to the property line in view of our back deck. (they were mad cause we and another neighbor filed a complaint with the health dept due to their garbage bags ripped open and garbage all over the place, which is also a violation of the deed restrictions) there's more to tell here if you find this a case your interested in. They are not nice people and retaliate if you turn them in for any violations. If we had known about these deed restrictions we would have stopped them years ago when they got their first cow!! I even called the title company and asked if they look for deed restrictions and they told me no.

Bottom line, I suggested they hire a good real estate attorney to sort the mess out. She found her owner policy and has hired an attorney. It will be interesting to see how the case is resolved and I do hope we hear the end of the story. ;)


Anonymous said...

I hate to seem like a naysayer, but I see some real complications for these folks. First, and as she demonstrates by saying that she found the restictions "in one day" at the property records office, she and all other lot owners had "constructive notice" of these restrictions. She also has an owner's policy; I'm sure that policy takes exception for those restrictive covenants and therefore give her notice that they exist. She mentions others in the subdivision who probably did know about the violation, and did nothing. She's been dealing with this for almost ten years, while the neighbor has continued to farm (which ain't a cheap thing to do, I promise you!) That's called laches. That may mean that no Court would now enforce them, if they've been ignored and others (like the nasty neighbors) have continued with their activities for as long as it appears. Finally, I doubt that her owner's policy provides any kind of affirmative coverage for the enforcement of restrictions being violated by someone else. She has good title; end of story, at least as far as the underwriter will be concerned.
Sorry to sound lke such a lawyer on this, and I do feel for this owner's situation and agree that more could have been done to alert her to these protections. Still, in my opinion this is going to be a tough case, and it's somewhat her fault

My word verification is "deities." I swear to them.

Diane Cipa said...

Thanks, Anon. You encapsulated very nicely much of the conversation we had over the course of the week.