I know recently I was reading about case law pertaining to deed restrictions.
Specifically, where the majority of deeds within a subdivision contain the restrictions and also have a convenent that says all the conveyances of lots in the subdivision will have the same restrictions and that all land owned by the Grantor in that area will have the same restrictions, however a few of the deeds forgot to put the restrictions in the deed.
I know I have read and saw case law that has stated that if it can be shown that the intent was to include the restrictions in all lots/land conveyed and that the majority of the deeds conveyed contain the language that the restrictions can carry over and apply to the deeds that forgot to include the language.
Does anyone have a reference or a good case that can point this out?
Rich., post: 368308, member: 10450 wrote: I know recently I was reading about case law pertaining to deed restrictions.
Specifically, where the majority of deeds within a subdivision contain the restrictions and also have a convenent that says all the conveyances of lots in the subdivision will have the same restrictions and that all land owned by the Grantor in that area will have the same restrictions, however a few of the deeds forgot to put the restrictions in the deed.
I know I have read and saw case law that has stated that if it can be shown that the intent was to include the restrictions in all lots/land conveyed and that the majority of the deeds conveyed contain the language that the restrictions can carry over and apply to the deeds that forgot to include the language.
Does anyone have a reference or a good case that can point this out?
Kris Kline wrote about this in a fairly recent edition of P.O.B.
Yes this must be where I had read it..... Hopefully I didn't throw out the issue! Or I'll prolly find it online. But thank you. I'll look there. I had read like 30 issues lately so I wasn't sure what year it was but if it's recent I'll know where to look. Thanks again.
https://scholar.google.com/scholar_case?q=covenant+restrictions+real+property&hl=en&as_sdt=4,33&case=9818714423758111304&scilh=0&apos ;">Witter v. Taggart, 78 NY 2d 234 - NY: Court of Appeals 1991
Witter is not directly on point but I learned from it.
Common Grantor Lawrance conveys land to Witter on north side of a canal with a restrictive covenant in which Grantor agrees to refrain from building a dock on the canal on their retained lands on the south side of the canal. Grantor later conveys land through mesne conveyances to Taggert on the south side without mentioning the restrictive covenant. Taggert builds a dock. Witter sues to enforce the restrictive covenant and the trial court grants summary judgement to Taggert. Upon Witter's appeal the Court rules that the restrictive covenant is not in the main stem of Taggert's chain of title therefore Taggert did not have constructive or inquiry notice of the restriction. Taggert was not required to look at all of Lawrance's conveyances out to determine if one of them contained a restrictive convenant upon Taggert's acquisition. Witter should have required Lawrance to record a separate easement deed describing what would become Taggert's land as having a negative easement forbidding dock construction.
Witter has been cited in New York for the proposition that restrictive covenants are not favored in law:
https://scholar.google.com/scholar_case?about=9818714423758111304&q=covenant+restrictions+real+property&hl=en&as_sdt=4,33&scilh=0&apos ;">How Witter has been cited
"[T] he law has long favored free and unencumbered use of real property, and covenants restricting use are strictly construed against those seeking to enforce them
- in Ledda v. Chambers, 2001 and 48 similar citations
Restrictive covenants are strictly construed against those seeking to enforce them and will be enforced only where their existence has been established by clear and convincing proof
- in MATTER OF IOANNOU v. Southold Town Planning Board, 2003 and 19 similar citations
ÛÓrecording system "charge a purchaser with notice of matters... in the record of the purchased land's chain of title back to the original grantor
- in Holmes v. PARADE PLACE, LLC, 2013 and 12 similar citations
A "'purchaser is not normally required to search outside the chain of title,'and is not chargeable with constructive notice of conveyances recorded outside of that purchaser's direct chain of title
- in Farrell v. Sitaras, 2005 and 9 similar citations
We held that an encumbrance must be "record [ed] in the servient chain [of title]... so as to impose notice on subsequent purchasers of the servient land
- in Simone v. Heidelberg, 2007 and 8 similar citations
Owners of the servient estate are bound by constructive or inquiry notice of easements which appear in deeds or other instruments of conveyance in their property's direct chain of title
- in THE SEAVIEW AT AMAGANSETT, LTD. v. TRUSTEES OF THE FREEHOLDERS AND ..., 2014 and 11 similar citations
A restrictive covenant is strictly construed against those seeking to enforce it, and the interpretation that permits the least restrictive use of the property consonant with preserving the intended purpose of the restriction will be adopted
- in Mambretti v. POUGHKEEPSIE GALLERIA COMPANY, 2001 and 7 similar citations
ÛÓthe owner of a servient estate needs only actual notice of an extinguished easement for it to be re-created, when the easement is recorded in the dominant estate's chain of title.
- in Simone v. Heidelberg, 2007 and 8 similar citations
In Texas, subdivision covenants have an expiration date unless the group of owners within the subdivision vote to adopt them again or amend them as time goes on.
Dave Karoly, post: 368345, member: 94 wrote: https://scholar.google.com/scholar_case?q=covenant+restrictions+real+property&hl=en&as_sdt=4,33&case=9818714423758111304&scilh=0&apos ;">Witter v. Taggart, 78 NY 2d 234 - NY: Court of Appeals 1991
Witter is not directly on point but I learned from it.
Common Grantor Lawrance conveys land to Witter on north side of a canal with a restrictive covenant in which Grantor agrees to refrain from building a dock on the canal on their retained lands on the south side of the canal. Grantor later conveys land through mesne conveyances to Taggert on the south side without mentioning the restrictive covenant. Taggert builds a dock. Witter sues to enforce the restrictive covenant and the trial court grants summary judgement to Taggert. Upon Witter's appeal the Court rules that the restrictive covenant is not in the main stem of Taggert's chain of title therefore Taggert did not have constructive or inquiry notice of the restriction. Taggert was not required to look at all of Lawrance's conveyances out to determine if one of them contained a restrictive convenant upon Taggert's acquisition. Witter should have required Lawrance to record a separate easement deed describing what would become Taggert's land as having a negative easement forbidding dock construction.
Witter has been cited in New York for the proposition that restrictive covenants are not favored in law:
https://scholar.google.com/scholar_case?about=9818714423758111304&q=covenant+restrictions+real+property&hl=en&as_sdt=4,33&scilh=0&apos ;">How Witter has been cited
"[T] he law has long favored free and unencumbered use of real property, and covenants restricting use are strictly construed against those seeking to enforce them
- in Ledda v. Chambers, 2001 and 48 similar citations
Restrictive covenants are strictly construed against those seeking to enforce them and will be enforced only where their existence has been established by clear and convincing proof
- in MATTER OF IOANNOU v. Southold Town Planning Board, 2003 and 19 similar citations
ÛÓrecording system "charge a purchaser with notice of matters... in the record of the purchased land's chain of title back to the original grantor
- in Holmes v. PARADE PLACE, LLC, 2013 and 12 similar citations
A "'purchaser is not normally required to search outside the chain of title,'and is not chargeable with constructive notice of conveyances recorded outside of that purchaser's direct chain of title
- in Farrell v. Sitaras, 2005 and 9 similar citations
We held that an encumbrance must be "record [ed] in the servient chain [of title]... so as to impose notice on subsequent purchasers of the servient land
- in Simone v. Heidelberg, 2007 and 8 similar citations
Owners of the servient estate are bound by constructive or inquiry notice of easements which appear in deeds or other instruments of conveyance in their property's direct chain of title
- in THE SEAVIEW AT AMAGANSETT, LTD. v. TRUSTEES OF THE FREEHOLDERS AND ..., 2014 and 11 similar citations
A restrictive covenant is strictly construed against those seeking to enforce it, and the interpretation that permits the least restrictive use of the property consonant with preserving the intended purpose of the restriction will be adopted
- in Mambretti v. POUGHKEEPSIE GALLERIA COMPANY, 2001 and 7 similar citations
ÛÓthe owner of a servient estate needs only actual notice of an extinguished easement for it to be re-created, when the easement is recorded in the dominant estate's chain of title.
- in Simone v. Heidelberg, 2007 and 8 similar citations
Wow so that's the exact opposite. I would think that these decisions would go as the common sense route but I just remember reading that mentioned article in POB recently. But these cited cases are NY so that is good.
The only possible thing that can screw up these people in the case I'm working on is the subdivision map references the filed agreement.
The map references that all land owned by XXX south of the post Road is restricted by filed agreement such and such.
The land they own is NOT in the subdivision, however it adjoins it and was also owned by the same parent owner and is part of the land originally owned south of Post Road.
Of course the restriction is for the allowance of single family homes only and the promise to the owners buying that the restriction will be on all land sold by her. Now years later, a major parcel is being bought out and a developer wants to put in condominiums and seasonal housing.
I should also add that the major parcel was taken over by the town and subsequently sold by the town and not directly from her, so it could also get interesting.
A Harris, post: 368405, member: 81 wrote: In Texas, subdivision covenants have an expiration date unless the group of owners within the subdivision vote to adopt them again or amend them as time goes on.
This seems smart. It's a bit silly for a landowner to restrict something when they subdivide and then nobody can ever change that.
Also these restrictions are a bit dated. Common area fees were to never exceed $25/year! Now back in 1910 this might have seemed to build in plenty of Lee way for inflation but fast foward 105 years and it's a joke.
It appears that the question is whether your client had constructive notice of the restriction. If they are not in the subdivision I would think the Plat would not be sufficient notice to them. I would bet the restriction doesn't apply but that is somewhat of a guess. The Opinion I found may be on point after all.
Yup. I read a few similar on Google scholar as well.
I told the guy in the end that their original deed needs to be read and the title company needs to get it. I searched but lost chain around the 20s.
ATLANTA DEVELOPMENT AUTHORITY, d/b/a
INVEST ATLANTA v. CLARK ATLANTA UNIVERSITY, INC
http://www.gasupreme.us/wp-content/uploads/2016/03/s15a1684.pdf
This one deals with a revisionary clause in a deed.
Land Developers, Inc. v. Maxwell, 537 SW 2d 904 - Tenn: Supreme Court 1976
http://scholar.google.com/scholar_case?q=deed+restrictions&hl=en&as_sdt=4,1,11,43&case=1079397723440905537&scilh=0
http://scholar.google.com/scholar_case?q=deed+restrictions+privity&hl=en&as_sdt=4,1,11,43&case=14875409233915137091&scilh=0&apos ;">Hysinger v. Mullinax, 319 SW 2d 79 - Tenn: Supreme Court 1958
http://scholar.google.com/scholar_case?q=deed+restrictions+privity&hl=en&as_sdt=4,1,11,43&case=327927046140428908&scilh=0&apos ;">Johnson v. Myers, 172 SE 2d 421 - Ga: Supreme Court 1970
Brew v. Van Deman, 53 Tenn. 433 I couldn't find the case but it is talked about here
https://books.google.com/books?id=GiuxeLvKQLgC&lpg=PA144&ots=xRnnxMIZdj&dq=Brew%20v.%20Van%20Deman%2C%2053%20Tenn.%20433&pg=PA144#v=onepage&q=Brew%20v.%20Van%20Deman,%2053%20Tenn.%20433&f=false&apos ;"> https://books.google.com/books?id=GiuxeLvKQLgC&lpg=PA144&ots=xRnnxMIZdj&dq=Brew v. Van Deman, 53 Tenn. 433&pg=PA144#v=onepage&q=Brew v. Van Deman, 53 Tenn. 433&f=false
This case may be of interest since it involves a Subdivision Plat with a Notation on it: "CASTLE ESTATES INC. R-2 ZONING". Is this sufficient to enforce a restrictive covenant against commercial use?
https://scholar.google.com/scholar_case?q=covenant+restrictions+real+property&hl=en&as_sdt=4,33&case=17566209473268036755&scilh=0&apos ;">Huggins v. Castle Estates, 36 NY 2d 427 - NY: Court of Appeals 1975
Dave Karoly, post: 368598, member: 94 wrote: This case may be of interest since it involves a Subdivision Plat with a Notation on it: "CASTLE ESTATES INC. R-2 ZONING". Is this sufficient to enforce a restrictive covenant against commercial use?
https://scholar.google.com/scholar_case?q=covenant+restrictions+real+property&hl=en&as_sdt=4,33&case=17566209473268036755&scilh=0&apos ;">Huggins v. Castle Estates, 36 NY 2d 427 - NY: Court of Appeals 1975
I actually just read this one last night. I'm liking this Google scholar. It's easy to search and also to just do recent cases
It seems restrictive covenants are common in New York?
They are certainly not common here.
Dave Karoly, post: 368676, member: 94 wrote: It seems restrictive covenants are common in New York?
They are certainly not common here.
Ehhh. Somewhat. I wouldn't say common but they aren't uncommon. I should post all these restrictions the lady placed, some are quite comical.
Stumbled onto a deed restriction in a tract sold in 1890 for the first time that was to continue in perpetuity. The buyer agreed to the requirement that liquor and other intoxicants could not be sold on the tract unless being dispensed for medical reasons by a pharmacist.
Told a former owner of the tract about the restriction, which was news to him. He said that during his time of ownership he was pretty certain that no liquor was ever sold on site but that truckloads were consumed.
Surveyed a 1,280 acre Headright on the south bank of White Oak Creek that was still in the original family's ownership that in a 1914 will the property was set in a trust for the family and to never be sold and kept in a timber management restriction set forth with instructions for the continuation of a 50 year cutting and growing plan and that the timber to never be clear cut. It meant that there would always be market timber to cut every 10 years.
Was on of the nicest natural timber farms I've seen.
Immediately after the survey, the property sold and the new owner clearcut the property for a handsome profit. Now the property is a bocat thicket not fit for anything.
[USER=81]@A Harris[/USER]
Whoops! I had never heard the term bocat. Did a search on line. I'm absolutely certain that what I read has absolutely nothing to do with the thicket to which you have referred. Hunt it up yourself. :-$:-$:-$:-$:-$:-$:-$:-$:-$:-$
bois d'arc thicket would probably be the actual spelling and bobcat find sanctuary there.
any total jungle can be most difficult to deal with.........:-O