Got a plat which shows a front 50' building line setback along the street right of way. Plat recorded on 10/12/1979.
Got restrictive covenants stating the front building setback is 40' from right of way. Restrictive covenants were recorded on 10/30/1979. The developer signed both the plat and the restrictive covenants with a notary witness on plat and covenants.
The ownership and dedication statement on the plat says nothing about establishing setbacks, just easements and right of ways etc.
The lot is quite shallow but does meet the standards far as depth for the day it was done, but with the perk area being in the back of the lot for septic the owner needs to slide the house toward the front as much as possible.
Question is which front setback is legal to use for staking a house behind. Opinions would be helpful before contacting an attorney. Thanks
Are the restrictive covenants private? I would say the government rules.
They are private and run with the Lots in the subdivision. I know of no front setback of our county having a 50' residentaul setback back in 1979. Our county setback today just became 50' in May.
Holding the most restrictive will cover you legally for staking. If the builder entity wants to use the 40' setback then I would recommend a lawyer involvement and consultation with who ever is controlling the CCR at this point. The municipality will just go with what their zoning says as the CCR doesn't apply to zoning and is a private matter limited to the parties under the recorded document. As for platting, I always show both and where the data came from....Too much liability for a surveyor to make that decision on which to use.
Show what's record, that's what a surveyor can do. It's not a good idea to violate HOA, PUD, covenant rules for the homeowner. It's also not up to the surveyor to play decider. Let them know and stay un-mired in all the legal questions as much as you can. We are a quasi-legal business, it's best to know as much as you can, but draw a line that's not to be crossed when legal opinions are needed.
As an aside here the covenant document would prevail, I can't say were you are.
In North Carolina. Letting attorney get involved now. Thanks for the replies.
The county is the only entity that can enforce zoning setbacks.
The home owners association is the only entity that can enforce covenants. The courts won't touch them.
If the home owners association was never established, or was dissolved from inactivity, you only need to worry about zoning.
That said, it's in everybody's best interest to stay clear of the 50' setback shown on the plat. A bank might get a little twitchy when it comes to handing out a mortgage on a house within that setback.
Maybe you can do a county approved replat of the property to publicly vacate the 50' setback line on your lot?
Thought about replatting but the lot is shallow in depth to our county standards today, plus the minimum square feet for Lot size area. Our county is 175' deep minimum and 100' width in front. This Lot of record is 173.84 on the west line and 173.82 on the east line and 115' on front and back lines. The problem is our county requires a minimum sq. feet of 30,000. They would not approve the replat. Our county setback is only 30' feet on minor subdivisions and 50' just went to effect this past May. Thanks again for replies.On the the lawyer desk now.
