Deed Restriction Violation - Need Help

[Brian888]

UPDATE: I've posted a copy of the deed restrictions and the amendment. You can see it at: http://crowdfundingforum.com/images/restrictions.pdf

What is the name of your state (only U.S. law)? Florida

2 Years ago I purchased a lot here in Florida. The title insurance missed the fact that there are deed restrictions from 26 years ago. We took a year to plan out our home, and on the day we signed the contract with the builder a neighbor sends me the restrictions which include a variety of issues for us. Docks can only go out 15 feet from the seawall, no metal roofs, no split lots, and most importantly 15 foot side setback, and 30 foot front setbacks, when the county says 7 and 25. The restrictions also claim that in order to do anything to the exterior of the house an owner must get approval of the HOA (No HOA was ever setup, after the original creator of the restrictions passed away 20 years ago. This threw a wrench into our plans to build based on 7 foot side setbacks, and 25 foot front setbacks. Now, it's the title insurance's responsibility to correct the issue or settle with us. We just want to build our dream home.

Here's the kicker. Out of 21 homes in the subdivision, only 3 are somewhat following the restrictions. 10 of the homes have docks going well past 15 feet, 2 homes have metal roofs, and 4 homes are going over the side setbacks. There are some smaller issues such as the need for a light post in each yard which every home is lacking as well. Not to mention that there are constantly changes to the exterior of homes which no one has ever bothered to get approval from a non-existent HOA or the subdivision in any way. In fact, one neighbor just pulled a permit in order to extend his dock in violation of the restrictions, while another is painting his house another color which he never asked anyone permission for. This same neighbors are against us building our home. The title insurance company is trying to get 51% vote to overturn the restrictions, however for the last 7 months we have been trying to talk to the neighbors to explain our situation, but none of them want to hear it. In fact many shut their doors in our faces. I am 31 years old and the people in the community are mostly older (65+). One neighbor went around and told the rest of them that we are young kids coming to the neighborhood to cause chaos, and they should not do what we are asking of them. We have gone door to door 4 times, and sent 4 letters to them all, asking for them to respond back with a vote. Only about 30% have responded, so we sent out a draft lawsuit which will claim that the deed restrictions have been abandoned, asking the court to rule them abandoned, or else force everyone to comply. Now they really hate us. I do not know if the insurance company will follow through with the lawsuit or not though. They may just wish to settle, meaning we would have to sue at our own expense.

My question is..... What do you feel our chances of winning such a lawsuit is. Would a judge rule the restrictions abandoned based on all the violations, and the fact that none of them have ever been challenged, nor has anyone ever asked permission for any exterior changes to their homes?

Also, the community is now trying to set up an HOA. If they do this, could they change the rules to only apply to what they don't want us doing, while allowing for their own current violations?

 

[justalayman]

How are the restrictions attached to the deed? through reference to being bound to some HOA rules, some actual inclusion of the rules, something else?

as to the notice your plans were not in compliance with these rules;

is the neighbor(s) willing to sue to attempt to enforce these rules?


I doubt a title insurance company is going to sue on your behalf unless that would be cheaper than settling with you. There is also no guarantee of a settlement in their favor either so all the money spent on a suit could be a waste and then still having to settle with you.

 

[Brian888]

The deed pretty much said just that any restrictions that may be in place should be followed. The actual restrictions were submitted to the county in 1987 by themselves, and an amendment to the restrictions in 1990. Another thing to note is that when we initially went around talking to neighbors, about 16 of the 21 homeowners were not even aware of the restrictions, or had thought they had expired. Ironically now that they know they exist and that they themselves are breaking them in several ways, they don't want us to be able to break them. The neighborhood has mainly 2500-3500 sq foot, 1 story homes, and we intend to build a 5000 sq foot 2 story home.

 

[justalayman]

Brian888;3220442]The deed pretty much said just that any restrictions that may be in place should be followed.

restrictions placed by whom? Do you mean I can come down there and say; you have to have a green roof?

Obviously I'm being facetious but the point is, your answer answered nothing.

The actual restrictions were submitted to the county in 1987 by themselves, and an amendment to the restrictions in 1990.

By what right did the county impose these restrictions? Are you suggesting they are enacted ordinances or incorporated them into the county building codes? Are you suggesting the county has created these restrictions for the entire county?


sorry but the lack of information here doesn't allow to offer much of anything.

 

[Brian888]

No I am not suggesting that. I am not sure exactly what you are asking me.

 

[justalayman]

No I am not suggesting that. I am not sure exactly what you are asking me.

you said the county instituted these restrictions. How a county creates restrictions is either through ordinance or building codes. So, are these restrictions either ordinances or building codes? Apparently not since you already stated the building codes have different set back requirements.


So, where are these restrictions written such they are attached to your deed in such a way somebody believes they can be enforced?

You said the restrictions were submitted to the county by the county. Unless the county was the developer for a subdivision, that makes no sense.


How about this;

where did you go to read these restrictions? Who has them? Generally, when a subdivision is created, the developer creates the HOA with the initial rules, restrictions, whatever. The CC&R's of he HOA are then filed with the state along with the documents creating the subdivision and the (pre, if you will) HOA.


So far all you have mentioned is the county proposed these rules to themselves and then somehow there are attached to your deed.


along with that, if there is no HOA, by what right does your neighbor believe they can enforce restrictions on YOUR deed? Is s/he willing to attempt to sue you (as his own person since there is no HOA) to enforce these ambiguously sourced restrictions?

 

[bdancer]

you said the county instituted these restrictions. How a county creates restrictions is either through ordinance or building codes. So, are these restrictions either ordinances or building codes? Apparently not since you already stated the building codes have different set back requirements.


So, where are these restrictions written such they are attached to your deed in such a way somebody believes they can be enforced?

You said the restrictions were submitted to the county by the county. Unless the county was the developer for a subdivision, that makes no sense.

You may want to go back and reread what the OP posted. I didn't read that as the county instituted the restrictions but that the restrictions were SUBMITTED to the county separate from individual deeds.

 

[justalayman]

You may want to go back and reread what the OP posted. I didn't read that as the county instituted the restrictions but that the restrictions were SUBMITTED to the county separate from individual deeds.

. The actual restrictions were submitted to the county in 1987 by themselves

well, I admit I wasn't a language major in college but to me, that sentence says the restrictions were submitted to the county by the county. Your interpretation is something different?

and what is even stranger and would surely remove the possibility of the grantor of a deed having been the party that submitted anything that would affect the OP's deed:

, and an amendment to the restrictions in 1990

a grantor cannot amend a deed 3 years after the sale.

but if we want to take your interpretation:

Who submitted the restrictions and to what entity? This is getting back to the; how are the restrictions attached to the land (through subsequent transfers using a deed) such that they are enforceable?

 

[Brian888]

Sorry, "by themselves" was referring to the restrictions, not the county.

The original developer who owned all the land in the subdivision is the one who attached the restrictions to the Deeds of all the properties back in 1987.

 

[TinkerBelleLuvr]

I would check with a real estate attorney. My understanding is that an HOA has to do legal stuff (for the lack of a better word this morning) to continue its existence past 20 years. I lay my odds that that was not done. If so, the HOA would no longer exist.

 

[justalayman]

Brian888
Sorry, "by themselves" was referring to the restrictions, not the county.

The original developer who owned all the land in the subdivision is the one who attached the restrictions to the Deeds of all the properties back in 1987.

that makes a lot more sense other than I can't get my head around a document specifying rules being able to do much of anything on its own

Just kidding. I understand what you mean. What you are now describing would be the typical actions in creating a subdivision with the intent of there being an HOA.

so, was there ever an HOA created? If not, any aggrieved person would have to attempt to argue that the restrictions are enforceable by them and given the fact the restrictions were not enforced upon anybody else by them, they likely have lost the right to attempt to enforce them upon you. If there is an HOA, then the HOA is the entity that would have to take action. Either could work to your benefit.

TinkerBelleLuvr
I would check with a real estate attorney. My understanding is that an HOA has to do legal stuff (for the lack of a better word this morning) to continue its existence past 20 years. I lay my odds that that was not done. If so, the HOA would no longer exist.

Yes, they generally do have to do "legal stuff" to continue to be an active HOA. Thanks for my laugh of the morning.

 

[Brian888]

Thanks for your feedback guys. There has never been an HOA set up. It has now been 27 years since the restrictions were issued. Talk to a neighbor yesterday who claims that him and some other neighbors are seeking to create an HOA so that they can than enforce the rules. Does this seem feasible, or is he bluffing? Even if they set an HOA up somehow, nearly every house is breaking at least one of the rules in the restrictions. Could they grandfather in all the homes currently built, forcing us to follow the rules that they all broke?

 

[justalayman]

well, attempting to retroactively enforce the rules is not likely to be a big winner.



since this neighbor seems to want to be a pain and has successfully turned the neighbors against you, maybe you can play their game;

tell all the neighbors who have restriction violations that if this guy is successful they will all have to raze their illegal constructions and do whatever else is required to bring their property to comply with the rules. I'm betting that will fly like a lead balloon.


Then watch the firestorm as they all should now be against this neighbor pushing to create this HOA.


none of that actually fixes your current issue. Stick with your title insurance and see where they go with this. I suspect what will result is the restrictions filed in anticipation of the creation of the HOA will likely be deemed abandoned due to the widespread ignorance of those restrictions.

 

[TinkerBelleLuvr]

Having lived through this, they cannot add an encumberance to your home AFTER the fact without your permission. Without an HOA NOW, they are totally SOL in that regard.

I still advise a real estate attorney at this point. And a very tall fence for that neighbor!

 

[justalayman]

Having lived through this, they cannot add an encumberance to your home AFTER the fact without your permission. Without an HOA NOW, they are totally SOL in that regard.

I still advise a real estate attorney at this point. And a very tall fence for that neighbor!

but acceptance of the deed that included reference to restrictions is not adding after the fact. The restrictions were in place at the time OP purchased the property.

Whether they can create an HOA that is based on the original filings to form an HOA or not is something that will take more research. That is something for the OP's lawyer to dig into.

and the OP should absolutely consult with a lawyer. The actions of the title company are going to be in the best interest of the title company. They are likely to take the cheapest legal rout available to settle the OP's situation without regard to the satisfaction of the OP.