Protective Covenant

CornbreadII said:

What is the name of your state? Alabama.

First, Thank you for any advice you are able to provide.

My wife and I purchase a newly constructed home in December of 2004. The home is in a two phase neighborhood. The first phase is about two years old. The second phase homes are less than a years old.

When we were shopping for homes we were looking for a neighborhood that would not get trashy. We found this neighborhood. We loved the homes, the location but most of all the neighborhood had a protective covenant. We were told by the real-estate agent that there was a protective covenant. She handed us a copy of the covenant. There was a large sign in the front of the subdivision that said there was a protective covenant and we signed something at closing that said the we agreed to the protective covenant. We even paid our association dews.

I just found out that there is no protective covenant in phase II of my neighborhood (we purchased in phase II). This is what I understand has happened. Phase one has a covenant. When phase II started I think the builders, one of which is the Prefect were supposed to annex phase II and file the covenant at the county courthouse. This never happened.

Now what? One of the only reasons that we bought a house in this neighborhood is because we thought we (our home/investment) would be protected. Do I call the lawyer that closed the deal and talk to him about the fraudulent contract he had me sign? Do I call the real-estate agent who represents the builder?

Thanks again for you advice.

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CornbreadII said:

HomeGuru,

The deed does not say CC&R

My deed says:

THE SAID GRANTOR hereby covenants with and represents unto said Grantees, their heirs, successors and assigns, that is lawfully seized in fee simple of the lot or pacel of land above described; that the same is free from all liens and encumbrabces except ad valorem taxes, restrictions, restrictions, restrictive covenants and easement or record, if any; that it has a food and lawful right to sell and convey the same as aforesaid, and that it will forever warrant and defend title to same unto the said Grantees and unto their heirs, successors and assigns, forever, except as to the said taxes, restrictions, restrictive covenants and easement of record, if any.

When you go to the county court house what you find is that my phase of the subdivision was never annexed and therefore there is not a covenant filed for my phase of the subdivision.

Does that answer your question?

Thanks

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CornbreadII said:

Not sure what my Title says. I don't have it in front of me right now. Will check it and see what it says.

Thank you.

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CornbreadII said:

HomeGuru,

Thank you for waiting by your computer.

My Title says: Subject to restrictions recorded in book 957, page 364.

Now that book is recorded at the county court and it is a declaration of protective coventants of the Bridgewater Community.

That book was written for phase I of Bridgewater. Phase II was started but was never annexed. Is phase II part of the Bridgewater community if it was never annexed into phase I and are the owners in Phase II required to adhere to book 957, page 364?

Thank you.

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CornbreadII said:

HomeGuru,

So is it my understanding that the Home Owners Association can enforce the covenants in Phase I and Phase II?

If the Association wants to make changes to the covenants it is my understanding that a certain percentage of residents need to vote yes in order for those changes to be made. Can phase II residents vote on those changes even thought they have never been annexed?

Should phase I annex phase II ASAP, or does it matter?

Thanks again.

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