Deed Restriction Violation - Need Help

[TinkerBelleLuvr]

Having been intimately involved in something like this, it is IMPERATIVE to get a good real estate attorney. I watched parcel by parcel get out of the HOA because the builder did NOT have 100% control over lots as CR&Rs were filed to correct issues.

The fact that there is no builder control at this time of all the parcels involved means that unless there is 100% buy-in, there won't be an HOA.

You can establish an HOA when you own all the parcels. The neighbor is blowing smoke.

 

[Brian888]

Here is something from the actual restrictions. Note that the Grantor is "Riverside homes, which folded their company, in 1990 when the owner passed away.:

At it's option, the Grantor/Develoer may elect at any time to offer to individual lot owners of the subdivided lots subject to these Restrictions as to Use the opportunity to form a non-profit homeowners assocsiation, in which event the Grantor/Developer shall have the right to assign by recorded assignment any or all of the rights given Grantor/Developers hereunder, including but not limited to the right to approve plans, specifications, and locations of buildings and other structures and to enforce these restrictions as to use


Does this mean an HOA can no longer be set up since the Grantor never transfered the rights?

 

[justalayman]

At it's option, the Grantor/Develoer may elect at any time to offer to individual lot owners of the subdivided lots subject to these Restrictions as to Use the opportunity to form a non-profit homeowners assocsiation, in which event the Grantor/Developer shall have the right to assign by recorded assignment any or all of the rights given Grantor/Developers hereunder, including but not limited to the right to approve plans, specifications, and locations of buildings and other structures and to enforce these restrictions as to use


Does this mean an HOA can no longer be set up since the Grantor never transfered the rights?

If there is nothing after this, this is likely why the title company didn't find any restrictions; there aren't any.


be cautious about the claim that the rights were not assigned to another party. Companies don't typically just fold. Their assets (including rights) are often sold to other entities.

 

[Brian888]

Here is a link to the Deed restrictions and the Amendment. It's in the Lee County Public record. I just uploaded it to a website of mine.

http://crowdfundingforum.com/images/restrictions.pdf

If anyone cares to read through them and tell me what you think, that would be awesome!

 

[TinkerBelleLuvr]

Here is a link to the Deed restrictions and the Amendment. It's in the Lee County Public record. I just uploaded it to a website of mine.

http://crowdfundingforum.com/images/restrictions.pdf

If anyone cares to read through them and tell me what you think, that would be awesome!

Take it to a real estate attorney versed in HOAs. There is no HOA at this time. I read it as the GRANTOR has to give you permission to make the changes.

Covenants are restrictions is basically contract law.

 

[TinkerBelleLuvr]

Who mains the road in front of the home? County?

Subdivisions are NOT required to have HOAs - a PUD DOES require one.

 

[TinkerBelleLuvr]

I'm pretty sure these are the folks:

http://www.florida-companies-info.com/riverside-homes-inc-30t41/

http://search.sunbiz.org/Inquiry/CorporationSearch/SearchResultDetail/EntityName/domp-j84948-3bce6a2b-2798-4d01-986d-8c2b68377851/riverside%20homes/Page1

The Grantor is no more.

 

[Brian888]

It's a subdivision, not a PUD. Riverside is gone, there is no grantor, but wouldn't the restrictions remain (Despite the fact that 90% of homes are breaking them usually in several ways) as they are attached to the deeds?

 

[LdiJ]

It's a subdivision, not a PUD. Riverside is gone, there is no grantor, but wouldn't the restrictions remain (Despite the fact that 90% of homes are breaking them usually in several ways) as they are attached to the deeds?

There has to be a legal entity with the authority to enforce the restrictions. In this situation there is none, and none can be formed (according to tinker) without every owner being in agreement.

 

[Brian888]

There has to be a legal entity with the authority to enforce the restrictions. In this situation there is none, and none can be formed (according to tinker) without every owner being in agreement.

What the other neighbors in the subdivision are arguing is that each individual lot own has the right to enforce the rules on others..... even though just about every person in the subdivision (if not all) are breaking the restrictions in one way or another.

 

[LdiJ]

What the other neighbors in the subdivision are arguing is that each individual lot own has the right to enforce the rules on others..... even though just about every person in the subdivision (if not all) are breaking the restrictions in one way or another.

They have no mechanism to enforce the restrictions other than suing you. If anyone sues you who has violated the restrictions themselves, then their case is dead in the water, they cannot win. If someone sues you who has not violated the restrictions, then your defense is that they have not sued any of the other people who have violated the restrictions.

Please go get a consult with a good real estate attorney.

 

[Brian888]

They have no mechanism to enforce the restrictions other than suing you. If anyone sues you who has violated the restrictions themselves, then their case is dead in the water, they cannot win. If someone sues you who has not violated the restrictions, then your defense is that they have not sued any of the other people who have violated the restrictions.

Please go get a consult with a good real estate attorney.

The one guy that would probably sue is the next door neighbor. We want to break the 15 foot side setback restrictions, and build only 7 feet from the side lot line (per county rules). He doesn't want us to do this. He himself is breaking a few restrictions, including the one that says docks can not extend beyond 15 feet from the sea wall (which every single house on the water is breaking in the sub division). Would he have any ground to stand on? Another few houses are breaking the side set back rules, but not his other next door neighbor.

 

[LdiJ]

The one guy that would probably sue is the next door neighbor. We want to break the 15 foot side setback restrictions, and build only 7 feet from the side lot line (per county rules). He doesn't want us to do this. He himself is breaking a few restrictions, including the one that says docks can not extend beyond 15 feet from the sea wall (which every single house on the water is breaking in the sub division). Would he have any ground to stand on? Another few houses are breaking the side set back rules, but not his other next door neighbor.

Again, in my opinion he has no grounds. However, a local real estate attorney can best advise you.

 

[TheGeekess]

The one guy that would probably sue is the next door neighbor. We want to break the 15 foot side setback restrictions, and build only 7 feet from the side lot line (per county rules). He doesn't want us to do this. He himself is breaking a few restrictions, including the one that says docks can not extend beyond 15 feet from the sea wall (which every single house on the water is breaking in the sub division). Would he have any ground to stand on? Another few houses are breaking the side set back rules, but not his other next door neighbor.

I would also be checking state regulations about how long those docks can be. FL has extensive state regulations about that.

 

[Brian888]

I would also be checking state regulations about how long those docks can be. FL has extensive state regulations about that.

I'm fairly certain that all the docks are in accordance with county/state regulations, as they have received permits to build.

My one other question would be this:

This is taken from the deed restrictions that I posted the link to above:

22. The failure of the Grantor or any owner to enforce any building restrictions, covenant, condition, obligation, right or power herein contained, however long continued, shall in no event be deemed a waiver of the right to enforce thereafter these rights as to the same violation or as to a breach or violation occurring prior or subsequent thereto.

24. Invalidation of any one of these convenants by judgment or court order shall in no wise affect any of the other provisions which shall remain in full force and effect.

These worry me, in that to me it sounds that it doesn't matter if other people have broken the rules in the past, and if they have not been enforced in the past. It sounds as though my neighbor or neighbors could still have a case against me breaking the same restrictions. What do you guys think? Would it hold up in court?