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Restrictive Covenant

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GailSusan

Guest
What is the name of your state? CT

I was unaware that there was a restrictive covenant included in the warranty deed when the owner of my property subdivided the property in 1940. The restrictive covenant states that the owner of my property cannot build within 50 feet of the boundary of that lot. It is not in my deed or the neighbor's deed. I came across the deed when looking through the land records at city hall as part of my real estate course homework.

I did, in fact, build a structure in the restricted area 20 years ago and my neighbor never objected. I am about to sell my house and am trying to obey the law by disclosing material facts. However, I am unclear as to whether this restrictive covenant still holds given that I violated it and the neighbor didn't object and since it is not in the deeds to our properties. The wording in the original deed says "to have and to hold the above granted premises, with the appurtenances thereof, unto it the said grantee it successors and assigns forever, its and their own proper use and behoof". Does a restrictive covenant still hold when a succession of owners' deeds fails to mention it? There is only this one mention when the property was originally subdivided, but clearly the intent was that this run with the land forever.

Appreciate any thoughts on this. I consulted a real estate attorney, but his title search only went back 40 years, and thus it didn't turn up this restrictive covenant, so he couldn't comment on it.
 


nextwife

Senior Member
I'm betting it was referenced in your title policy. The covenant runs with the land, unless there is some sort of "expiration language". Ignoring it does NOT remove it.

When planning any improvements that change the "footprint" of structures, it is always essential to not only make certain one is complying with local building codes, but also with all existing title restrictions (usually shown on the title policy in Schedule B2 or C).
 
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GailSusan

Guest
Thank you for your reply. I shouldn't have bothered going to a real estate attorney. All he did was waste my money and time. I spoke to the title company and they told me that in Connecticut you must go back to the deed that was in effect 40 years ago. This meant going back 50 years in my case. I looked up that deed and the CC&Rs are clearly listed.
 

HomeGuru

Senior Member
GailSusan said:
Thank you for your reply. I shouldn't have bothered going to a real estate attorney. All he did was waste my money and time. I spoke to the title company and they told me that in Connecticut you must go back to the deed that was in effect 40 years ago. This meant going back 50 years in my case. I looked up that deed and the CC&Rs are clearly listed.
**A: then ask for a refund from that attorney.
 

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