On Thu, 23 Aug 2007 07:44:52 GMT, akheel penned the following well
considered thoughts to the readers of rec.boats:
Gene Kearns wrote in
:
Either I didn't make myself clear or you guys need to read again for
content..... (1) I wouldn't buy a property that came with a deed
restriction and (2) my position was that NO agreement is binding
unless you sign indicating assent.
Check your mortgage paperwork and you will find that you have a copy
of some sort of protective or restrictive covenant or CC&R, designed
by the developer, that gave the HOA the power to tax you and determine
how you will use your property. You will probably, also, find a rider
on your deed that says you are aware of the covenant and will abide by
its restrictions (which include all of its penalties). You signed all
that didn't you?
I still feel that if you didn't sign the paperwork covering the deed
restriction.... you are not bound by what you didn't agree to.... (of
course that means you probably (wisely) walked away from the deal).
You couldn't be more wrong. It's not even not even open to debate. Take
it from me, I'm a real estate attorney. To borrow a line from the movie
"War of the Roses," when someone who gets paid $400/hour wants to give
you free advice, you should listen. You don't sign a deed. It is
delivered to you, signed by the seller, who is referred to in the deed as
the grantor. You are the grantee. Brokers and others may have you sign
something saying you are aware of the covenants, but that's just so you
don't sue them saying they should have told you. Regardless, if you buy
property subject to a restrictive covenant, then as long as you own that
property, you are subject to that covenant. Some covenants turn out to be
unenforcible for varous reasons, but not because you didn't sign
something. As was previously pointed out, racial covenants cannot be
enforced. There are other covenants that aren't enforcible either, but
that would take years and costs thousand of lives (another movie line;-)
to explain. Suffice it to say, you buy property subject to an HOA and
your stuck with it whether you signed anything or even knew about. You
are charged with researching the title all the way back to the time the
government first deeded the property to the first owner. Since that is
not practical for you to do, you get an opinion of an abstractor, or in
many states, title insurance, or both. Caveat Emptor!
You are correct.
My point was that I didn't know why anybody would willing assent to
such an agreement.
My point assumed that the grantee had done their homework and *knew*
about the restrictive covenant(s). The paperwork I was thinking of
that didn't have to be signed was the deed. As in, just walk away....
as SWS did in his instance.
The scary point, as you point out, is that an unwary grantee may
unwittingly find themselves subject to these screwy agreements by not
doing their homework.
In my state: one should NEVER buy anything without (1) a Title Search,
(2) Title Insurance, AND (3) written assurances of clear title from a
duly qualified and licensed real estate attorney. In my state, not
even a Title Search guarantees clear title..... only an attorney can
advise on the actual status of the title.
Personally, I'm amazed at the freedoms some people are willing to
relinquish (for whatever reason) to make sure that other people behave
in a particular way.
I'm glad to see that you, an attorney, don't see these covenants as
personally desirable....
--
Grady-White Gulfstream, out of Oak Island, NC.
Homepage
http://pamandgene.idleplay.net/
Rec.boats at Lee Yeaton's Bayguide
http://www.thebayguide.com/rec.boats
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