Legality of restriction removal from deed

What is the name of your state? NEW YORK.
A property in our neighborhood was sold recently. This property has had a restriction as to the height of any structure to be built on the property since 1948. The purchasers changed the deed when they bought the property and left out the restrictive clause. Is this legal? The sellers tell us that they did not agree to change the deed, but admit that they did not examine the deed carefully when they signed. Is there any legal recourse for our neighborhood?

[nextwife]

One can't simply "remove" a restrictive covenant by failing to put it in a deed. It remains "of record" against the property, and a search of the chain of title would reveal the restriction. LIkely it IS stated in the title policy- which they may have convenienty failed to read.

Note that SOME restrictive covenants have an expiration. My home's deed restrictions basically "expired" 30 years later as there was no HOA around to "renew" them, for example. No matter, all lots were already built upon.

But, no, they cannot arbitrarily becide that any deed restrictions no longer exist or no longer apply to them. The wording on the recorded restriction would show if it is enforceable.

Thanks so much for this reply. There is no expiration set in any of the previous deeds (1948, 1962 & 1991) filed. There is no enforcement information in the previous deeds. The deeds simply state: "subject to the further provision that any structure which may be erected on the premises above described shall not be more than one-story in heighth above the street level of [name] Avenue." So, given this, what am I to understand from your statement about the "wording on the recorded restriction would show if it is enforceable"? Is these deed affected if there is no such wording (at least that I can tell)?

Based on your reply, we will retain a lawyer because it looks like we have a chance of holding this property owner to this restriction despite his removing it from the deed. If anyone has further advice, please email me at [email]cpmomcat@aol.com[/email] in case I somehow miss replies to this thread. I am new at this "forum" thing and I am clumsy in using it.

Thanks again for your time and this information.
cp

<<One can't simply "remove" a restrictive covenant by failing to put it in a deed. It remains "of record" against the property, and a search of the chain of title would reveal the restriction. LIkely it IS stated in the title policy- which they may have convenienty failed to read.

Note that SOME restrictive covenants have an expiration. My home's deed restrictions basically "expired" 30 years later as there was no HOA around to "renew" them, for example. No matter, all lots were already built upon.

But, no, they cannot arbitrarily becide that any deed restrictions no longer exist or no longer apply to them. The wording on the recorded restriction would show if it is enforceable.>>

[nextwife]

I was involved in a similar situation in which a neighbor obtained a title search and copy of recorded restrictions against the subject property for the purposes of enforcing a height restriction. They DID obtain an injunction, blocking further construction until the plans were modified to comply with the recorded restriction.

A person cannot simply choose to leave out a recorded restriction from a deed and believe that this "removes" the restriction from the property! That's like believing that quit claiming a house removes the mortgage or a lien - it doesn't. It's part of the title condition.

[HomeGuru]

Writer, all that you need to do is get a title report on the subject property.
The deed restrictions should be there.

Thanks so much for the help. I have called an attorney and hope to hear back soon, since I have no idea how to go about getting a Title Report (since the only time I've ever gotten one was as part of the closing paperwork on a home purchase - and our attorney for the sale handled it). Again - thanks. Your responses have given us hope!
cp

[HomeGuru]

Originally Posted by cpmomcat

Thanks so much for the help. I have called an attorney and hope to hear back soon, since I have no idea how to go about getting a Title Report (since the only time I've ever gotten one was as part of the closing paperwork on a home purchase - and our attorney for the sale handled it). Again - thanks. Your responses have given us hope!
cp

**A: the other option is to order a title report from a title company.