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  • From: Clansgian AT wmconnect.com
  • To: homestead AT lists.ibiblio.org
  • Subject: Re: [Homestead] Real Estate Question
  • Date: Sat, 30 Sep 2006 12:50:47 EDT


> When we bought this place we hired a title company. Was that enough?

Probably not. Not in lieu of a title search at any rate. Title companies
are (can be) great especially for title insurance. But if you buy land and
find
that it is under a covenant that, for example, restricts you from camping on
it, you'd have no recourse to the title company.

I'm

> certain that a search for liens against the property is harder than one
> for deed restrictions, which are all recorded in one easy place, right?
>
>

Usually leins and deeds of restricion are recorded in the same place. One
place, but easy? Not necessarily. In most states you can record
restrictions
directly on the deed, as a separate covenant, or on the deed of another piece
of property. The restrictions might not appear on your deed nor the deed
from
which yours is written, but if you search back to the original issuer, you
may
find an original deed with restrictions and those will still be binding. If
the issuer created other deeds, as from dividing a larger estate, the
restrictions might appear on ONE of the deeds but not the others and they are
still
binding. Tricksty, that.

Most states recognize that a deed restriction is valid and enforceable if
four criteria are met:

1: Property was from a common issuer (writer of deeds)
2: The restrictions are for the benefit of the deed holder
3: There is a common plan of development
4: The buyer had knowledge of the restrictions

If you have had the misfortune of having to deal with courts you will recall
that they allow for two types of knowledge:

1: Actual knowledge
2: Construct knowledge

The latter means that you might have not actually known, but anyone
exercising reasonable prudence would have known. That is, if the
restrictions (or
leins) are properly recorded, you are responsible for finding them out.

Alas, I am all too familiar with this whole bit because I had to enforce the
restrictions on the land around mine in court.




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