I am compiling an ALTA/NSPS Land Title Survey for a property that I did one last year for. The subject property has a restriction (1948) that "no building shall ever be built nearer than 15 feet from the presently existing westerly boundary of 30th Avenue NE" which I cite on our map. Fast forward to this update and the current owner has filed a "Termination of Deed Restriction" document which basically eliminates the setback. Is this acceptable? If so, why have deed restrictions in the first place?
I recorded a survey last year that cites this setback and the document creating it. The current (and former for that matter) title report ignore the restriction but reference the survey map and all restrictions shown on it. I reference the survey because it appears in the referenced report but now the attorney want me to remove any reference to the restriction. I am hesitant.
I would be curious about who the restriction benefited (seems like it would be the City) and see if they are comfortable with its termination. If the Report references the map I'm not sure how you couldn't show it, even if it has been terminated.
The original document was from an individual to another individual. Eventually a City came into ownership together with the restriction. The City is selling and has filed the termination document to apparently clear title. Current zoning setbacks would allow for zero setback which is my concern. Who is at fault when the heir or a court enforces the restriction after a multi-story building is finished? I am trying to eliminate me from that possibility.
Daniel Ralph, post: 431129, member: 8817 wrote: The original document was from an individual to another individual. Eventually a City came into ownership together with the restriction. The City is selling and has filed the termination document to apparently clear title. Current zoning setbacks would allow for zero setback which is my concern. Who is at fault when the heir or a court enforces the restriction after a multi-story building is finished? I am trying to eliminate me from that possibility.
Are you thinking that one of the original owner's might still have some right associated with the property they sold?
I have no evidence that the original owner released their interest in the restriction. So yes, I am concerned about what may come out of the woodwork. The lender's attorney stated that everyone is aware of it so I should just eliminate mention of it. But in the same breadth she wants me to include successors and assigns.
This week is starting off not so well.
By what mechanism do you foresee a previous owner having an interest in the property, or having any input regarding a deed restriction on a parcel that he sold.
Personally, I would show all the information. Make a note of the restriction and the termination document. Then all parties are notified of it (including successors and assigns) and if the termination is valid (which is not your job to determine) then the restriction is gone.
Does your state have a law prohibiting perpetuities? Mass. statutes have time limits for these types of deed restrictions between grantor / grantee if no time duration for the restriction is specified.
Daniel Ralph, post: 431144, member: 8817 wrote: I have no evidence that the original owner released their interest in the restriction. So yes, I am concerned about what may come out of the woodwork. The lender's attorney stated that everyone is aware of it so I should just eliminate mention of it. But in the same breadth she wants me to include successors and assigns.
This week is starting off not so well.
i neither have enough info nor enough familiarity with your local policies and procedures to give a straight answer. but based upon this statement, here's what i'd recommend: agree that you'll stop showing it graphically, but that you'll add a note that the setback of record was removed under the opinion and authority of nancy q. justice, esquire.
see how she likes having her name on it.
i did this in a similar situation and the haste with which the demand was withdrawn was impressive. i mean IMPRESSIVE. like within 30 seconds of hitting the "send" button.
There is nothing wrong with showing the location of the "removed" deed restriction location and noting specifically on the survey the origin of the removed language. We rely on public records, in part to make our decisions, state the facts as you know them.
Hmmm... "30th Avenue NE" sounds like Lake City, my old stomping grounds. High-rise apartments/condos/etc. galore there now... I'll leave it at that 🙂
Daniel Ralph, post: 431121, member: 8817 wrote: I am compiling an ALTA/NSPS Land Title Survey for a property that I did one last year for. The subject property has a restriction (1948) that "no building shall ever be built nearer than 15 feet from the presently existing westerly boundary of 30th Avenue NE" which I cite on our map. Fast forward to this update and the current owner has filed a "Termination of Deed Restriction" document which basically eliminates the setback. Is this acceptable? If so, why have deed restrictions in the first place?
I recorded a survey last year that cites this setback and the document creating it. The current (and former for that matter) title report ignore the restriction but reference the survey map and all restrictions shown on it. I reference the survey because it appears in the referenced report but now the attorney want me to remove any reference to the restriction. I am hesitant.
In MA, restrictions last 30 or 50 years depending on date created unless otherwise stipulated.
Reference the former location and the document that terminates the restriction. QED.
This sounds similar to, but slightly different from, an easement. One cannot simply file a Termination of Easement document simply because they don't like its existence. Somebody, somewhere was benefiting from the deed restriction. The challenge would be to discover precisely who that was.
Holy Cow, post: 431271, member: 50 wrote: This sounds similar to, but slightly different from, an easement. One cannot simply file a Termination of Easement document simply because they don't like its existence. Somebody, somewhere was benefiting from the deed restriction. The challenge would be to discover precisely who that was.
I would argue that it is an easement, a negative easement - but there is a problem with that argument if there is no grantee shown on the drawing. Perhaps it never existed in the first place...
