Restrictive Covenant vs Warranty against Encumbrances made multiple owners ago

[justalayman]

So they aren't attempting to enforce anything, yet because there is nothing in violation of the covenants. So you are at a stalemate. They win unless you push the issue.

There is a possibility you seem a declarative judgment but given your posts so far it's pretty certain hoa would win plus the action is on your dime.

No it is not applicable even if

The deed warranties the title to the grantee. As I said, for all you know the grantor gave them $1 to settle the same argument you are having now. What matters is your deed and your title insurance.

If the grantor in your transaction used a limited warranty deed, that would preclude any action against your seller for this matter.


I'm pretty sure your only action is against your title company for an error or omission. When using a limited warranty deed, the grantor doesn't have to bind you to matters of public record since they are warranting nothing more than the title during their time of ownership. That leaves you to your own devices to ensure there are no objectionable matters that adversely affect your period of ownership. That is why you purchase title insurance.


Now, almost 100% guarantee they did exclude coverage against matters of public record but the thing that nullifies that is they were hired to investigate the title and provide you with an accurate report from which you could decide if you were willing to accept title with encumbrances. They were remiss if they did not discover and disclose the covenants to you do your action is against you own title insurer.

 

[OHRoadwarrior]

Also be aware covenants made decades ago, sometimes eventually evolve into city or county ordinances for all as they are good ideas.

 

[concern_citizen]

So they aren't attempting to enforce anything, yet because there is nothing in violation of the covenants. So you are at a stalemate. They win unless you push the issue.

****Right!****

There is a possibility you seem a declarative judgment but given your posts so far it's pretty certain hoa would win plus the action is on your dime.

****I'll have to send you a PM with more details.****

No it is not applicable even if

The deed warranties the title to the grantee. As I said, for all you know the grantor gave them $1 to settle the same argument you are having now. What matters is your deed and your title insurance.

If the grantor in your transaction used a limited warranty deed, that would preclude any action against your seller for this matter.

****The grantor in my transaction used a limited warranty deed. Also, I'm pretty sure this argument never came up previously. The "further assurances" language in the deed that the previous owner (who signed the restrictive covenant) many owners ago is interesting- are you saying their further assurances are only made to that next grantee in the chain of title (and not me, many owners later)???****

I'm pretty sure your only action is against your title company for an error or omission. When using a limited warranty deed, the grantor doesn't have to bind you to matters of public record since they are warranting nothing more than the title during their time of ownership. That leaves you to your own devices to ensure there are no objectionable matters that adversely affect your period of ownership. That is why you purchase title insurance.

****Most title policies, however basic, include provisions for undisclosed but recorded restrictions of record****

Now, almost 100% guarantee they did exclude coverage against matters of public record but the thing that nullifies that is they were hired to investigate the title and provide you with an accurate report from which you could decide if you were willing to accept title with encumbrances. They were remiss if they did not discover and disclose the covenants to you do your action is against you own title insurer.

 

[LdiJ]

So they aren't attempting to enforce anything, yet because there is nothing in violation of the covenants. So you are at a stalemate. They win unless you push the issue.

****Right!****

There is a possibility you seem a declarative judgment but given your posts so far it's pretty certain hoa would win plus the action is on your dime.

****I'll have to send you a PM with more details.****

No it is not applicable even if

The deed warranties the title to the grantee. As I said, for all you know the grantor gave them $1 to settle the same argument you are having now. What matters is your deed and your title insurance.

If the grantor in your transaction used a limited warranty deed, that would preclude any action against your seller for this matter.

****The grantor in my transaction used a limited warranty deed. Also, I'm pretty sure this argument never came up previously. The "further assurances" language in the deed that the previous owner (who signed the restrictive covenant) many owners ago is interesting- are you saying their further assurances are only made to that next grantee in the chain of title (and not me, many owners later)???****

I'm pretty sure your only action is against your title company for an error or omission. When using a limited warranty deed, the grantor doesn't have to bind you to matters of public record since they are warranting nothing more than the title during their time of ownership. That leaves you to your own devices to ensure there are no objectionable matters that adversely affect your period of ownership. That is why you purchase title insurance.

****Most title policies, however basic, include provisions for undisclosed but recorded restrictions of record****

Now, almost 100% guarantee they did exclude coverage against matters of public record but the thing that nullifies that is they were hired to investigate the title and provide you with an accurate report from which you could decide if you were willing to accept title with encumbrances. They were remiss if they did not discover and disclose the covenants to you do your action is against you own title insurer.

It would be a lot easier for the advisors to follow what you are saying if you would use the quote feature and respond to one post at a time. I have not responded to your thread because it is too hard to follow the way that you are doing it.

 

[justalayman]

There is a possibility you seem a declarative judgment but given your posts so far it's pretty certain hoa would win plus the action is on your dime.

****I'll have to send you a PM with more details.****

please don't. There are others more educated than I on the forum plus the forum is what it is; a forum.

****The grantor in my transaction used a limited warranty deed. Also, I'm pretty sure this argument never came up previously. The "further assurances" language in the deed that the previous owner (who signed the restrictive covenant) many owners ago is interesting- are you saying their further assurances are only made to that next grantee in the chain of title (and not me, many owners later)???****

the "may have given $1" was not meant to be a definitive statement releasing everybody from anything. It was simply a statement to show you have no real idea what may or may not have transpired in the past, but in the end it doesn't really matter.

Yes, I am saying their assurances apply to the grantee of that deed. It ends there. If there were any action possible concerning that transaction it would be by the grantee against the grantor of that deed. Especially because you have a limited warranty deed, what was promised to you was the grantor did not encumber the deed in any way to affect you, and since that is not your argument here, I presume they didn't. That does not invoke the assurances of any prior grantor.

I'm pretty sure your only action is against your title company for an error or omission. When using a limited warranty deed, the grantor doesn't have to bind you to matters of public record since they are warranting nothing more than the title during their time of ownership. That leaves you to your own devices to ensure there are no objectionable matters that adversely affect your period of ownership. That is why you purchase title insurance.

****Most title policies, however basic, include provisions for undisclosed but recorded restrictions of record****

not sure what you are attempting to convey here.

If you are speaking of the title insurance provider escaping liability due to such limitation, likely not going to relieve them of liability. If they were hired to research the title and failed to inform you or insert specific exemptions, well, this is why they carry errors and omissions insurance because they made an error by omitting the so very important information about the covenants.

 

[justalayman]

without disclosing much or what you stated in the pm, whether they are an HOA or an individual owner covered under the same covenants, they can sue to enforce the covenants since they would affect their property. People often buy specifically where certain covenants are in place to prevent unwanted issues around them. Many developments have minimum footage for a house. Many require specific methods of construction (such as brick exteriors). The list is endless.

we have a couple near me that do not allow a car to be parked in your driveway overnight. You cannot leave the garage door open other than when moving your car in or out. In one you cannot install a swing set for your children.

While I would not live in any one of them, a lot of people will as there are a lot of homes there. Apparently somebody enjoys those restrictions as they are.


So, if this isn't an HOA, how does this group claim a right to control anything? If a group of individuals, while they would have the right to protest your actions, their power would be none without the weight of the court behind them.

also, what is on one property may be able to be prevented being put on another. Many rules are written such that it requires neighbors permission. There are myriad other reasons for what appears to be unwarranted rejections while others have been allowed to do exactly what you asked to do.

You are starting to get quite specific and per your PM you do not want it to get to identifiable. Due to that and that this is merely a forum, while I know it sounds cliche`, I believe you would be best served by hiring an attorney where they can read all the involved documents and research all of the issues and provide some more concrete answers for you.

 

[concern_citizen]

It would be a lot easier for the advisors to follow what you are saying if you would use the quote feature and respond to one post at a time. I have not responded to your thread because it is too hard to follow the way that you are doing it.

I'm new to the forum and didn't understand the HTML tags, but I get it now- thanks! Feel free to comment if you have anything you want to add- sorry that it's difficult to read

 

[concern_citizen]

without disclosing much or what you stated in the pm, whether they are an HOA or an individual owner covered under the same covenants, they can sue to enforce the covenants since they would affect their property. People often buy specifically where certain covenants are in place to prevent unwanted issues around them. Many developments have minimum footage for a house. Many require specific methods of construction (such as brick exteriors). The list is endless.

Only the HOA cares. The covenant is very vague and grants broad discretion to the HOA's Architectural Review Committee.

we have a couple near me that do not allow a car to be parked in your driveway overnight. You cannot leave the garage door open other than when moving your car in or out. In one you cannot install a swing set for your children.

While I would not live in any one of them, a lot of people will as there are a lot of homes there. Apparently somebody enjoys those restrictions as they are.

I moved into the neighborhood because it is a nice looking neighborhood, no doubt about it.

So, if this isn't an HOA, how does this group claim a right to control anything? If a group of individuals, while they would have the right to protest your actions, their power would be none without the weight of the court behind them.

Exactly. They profess that they are merely enforcing contractual matters (the deed restriction), but claim to not be a HOA. It is very odd, and I plan to work with a regulatory agency to ascertain definitively that they are a HOA. If I were a construction company established in the early 1900s which is still in operation today, I couldn't argue that I am no longer a construction company because I happened to incorporate nearly 100 years ago.

also, what is on one property may be able to be prevented being put on another. Many rules are written such that it requires neighbors permission. There are myriad other reasons for what appears to be unwarranted rejections while others have been allowed to do exactly what you asked to do.

You are starting to get quite specific and per your PM you do not want it to get to identifiable. Due to that and that this is merely a forum, while I know it sounds cliche`, I believe you would be best served by hiring an attorney where they can read all the involved documents and research all of the issues and provide some more concrete answers for you.

I was looking for free advice, though I might happen to have an attorney

 

[justalayman]

concern_citizen;3378205]Only the HOA cares. The covenant is very vague and grants broad discretion to the HOA's Architectural Review Committee.

so if it contains those words: gives...to the HOA' Architectural Review Committee, then tell them since they deny being an HOA where as they obviously cannot be the HOA's Architectural Review Committee, then they have no authority to enforce those rules. They need to either be THE authorized HOA and abide by the laws applicable to HOA's or admit they are simply a vigilante group playing like they are the HOA board.

Exactly. They profess that they are merely enforcing contractual matters (the deed restriction), but claim to not be a HOA. It is very odd, and I plan to work with a regulatory agency to ascertain definitively that they are a HOA. If I were a construction company established in the early 1900s which is still in operation today, I couldn't argue that I am no longer a construction company because I happened to incorporate nearly 100 years ago.

I would seriously start with by determining their legal status and by what right they seek to enforce any rules. Now mind you, even an individual person can seek to have the covenants enforced if they are within the same covenants as it can negatively affect the value of their home, living conditions, whatever and they had purchased their home with the belief the covenants would be enforceable.

There is more to continuing an HOA though. There are requirements to continue the operation. If abandoned, it must be resurrected. A group of people can't simply self proclaim to be the HOA board and start attempting to enforce rules.

I was looking for free advice, though I might happen to have an attorney

Gawd no. Can't stand most of them

but seriously, no, not an attorney. Just a really bored guy.

 

[OHRoadwarrior]

As Justalayman said, what it appears to be is a group of residents concerned about the covenants being enforced to protect their property values, not an officially formed HOA. They could however elect to band together and sue you to enforrce the covenant and have the violation removed. In your case that could end up being a very expensive loss after making, then destroying under court order in addition to attorney fees. Is it really worth it?

Personally, I have addressed covenants with neighbors and am aware of covenants being enforced against one neighbor who was bringing his business equipment home. I am also aware of another in the next development who was similarly hit. Both bought shops elsewhere to comply with the covenants.

 

[concern_citizen]

As Justalayman said, what it appears to be is a group of residents concerned about the covenants being enforced to protect their property values, not an officially formed HOA. They could however elect to band together and sue you to enforrce the covenant and have the violation removed. In your case that could end up being a very expensive loss after making, then destroying under court order in addition to attorney fees. Is it really worth it?

Personally, I have addressed covenants with neighbors and am aware of covenants being enforced against one neighbor who was bringing his business equipment home. I am also aware of another in the next development who was similarly hit. Both bought shops elsewhere to comply with the covenants.

This is a sanctioned group of the HOA- their architectural committee. Not a band of concerned citizens (like my internet nickname )

 

[OHRoadwarrior]

If it is an actual dues collecting HOA, they can not only use dues to take you to court, they can make a special assessment if the court costs to enforce the covenants are exceptionally high.

 

[justalayman]

This is a sanctioned group of the HOA- their architectural committee. Not a band of concerned citizens (like my internet nickname )

you said they specifically stated they are not an HOA. The architectural committee of an HOA is considered the HOA. It is created and controlled by the HOA. It is simply assigned to specific tasks. It would be no different than having a grass maintenance verification committee or a make sure your garbage can is in the back yard except on garbage day committee. They ARE the HOA.


Now your post suggests there is in fact an active HOA. That changes a lot.


including it would mean they are required to comply with the laws regarding HOA's

 

[concern_citizen]

you said they specifically stated they are not an HOA. The architectural committee of an HOA is considered the HOA. It is created and controlled by the HOA. It is simply assigned to specific tasks. It would be no different than having a grass maintenance verification committee or a make sure your garbage can is in the back yard except on garbage day committee. They ARE the HOA.


Now your post suggests there is in fact an active HOA. That changes a lot.


including it would mean they are required to comply with the laws regarding HOA's

The committee thinks they are above state law. They have asserted (in writing) that their meetings are closed by default, and they have also asserted that they don't have to provide minutes from their meetings to me (supposedly to protect the privacy of other homeowners). But it's all really to protect their opaque process and impunity...

 

[justalayman]

The committee thinks they are above state law. They have asserted (in writing) that their meetings are closed by default, and they have also asserted that they don't have to provide minutes from their meetings to me (supposedly to protect the privacy of other homeowners). But it's all really to protect their opaque process and impunity...

is there an HOA? Is the group you are dealing with an official committee formed under the rights of the HOA?

If yes to those questions, your entire inferred premise was deceptive. If there is in fact an HOA and this groups is duly delegated by the HOA as the Architectural Review Committee and they are acting within the rights given them by the HOA, then what you have is nothing. The HOA can enforce the covenants. As I stated way back, any remedy that may be available to you is through or against your title insurance provider. Your remedies are going to be limited to financial compensation. It could be a perceived difference in value of the property with and without the covenants but be careful going down that road since many properties are actually more valuable because of the covenants or some other means to value what you claim are damages to you. There have been situations where a title insurance provider has actually purchased a property to settle matters although I doubt that would be likely here.

If the committee is not acting with the law, your remedy there is to seek they comply with the laws. That means you sue them. Before getting that far I would suggest you read all the rules, covenants, restrictions, and anything else concerned with the HOA so you understand things a bit better. Then search the laws regarding the actions of the HOA and if violated, your recourse.