A client wants to assure that her land does not become access for a subdivision on the land behind hers. She has three parcels and suggested a buffer zone to be placed along the rear boundary of each.
A conservation restriction would be permanent, but will take a long time to create. While a restrictive covenant can be created quickly, it is only in effect for thirty years in Massachusetts.
My question is whether the restrictive covenant should appear on the map of the survey, in the deed or both? I asked my client to talk with an attorney specialist in real estate law, because either way, the attorney should have a better way with the wording.
I searched, and read other posts on restrictive covenants here, but none were specific to my question. Write it in the deed? Show it on the map? Both?
I would be interested to see the wording on this and and am wondering how enforceable it would be down the line.
Both...restriction in the deed, but referenced on the survey plat with a graphic representation of the limits with a description and deed reference thereto.
My $0.02...
The 30 year life of the restrictive covenant may not be an issue. I know it wouldn’t be for me. I’d go with the restrictive convenant.
If I were her, I would keep a fourth lot which ran that full distance behind the three lots she wants to create and sell. OR simply not include it in the subdivision. Then if she wanted to put it in a permanent conservation tract, she could do that on her own time schedule.
@kevin-hines I agree with noting in both places but question the enforceability upon future owners, especially if the current owner were to pass and the lot owner to the rear bought the lots from the estate.
About 40 or so years ago a fellow here sold a large piece of property at the intersection of two busy roads. He sold all of it EXCEPT a one foot wide strip along one of the roads. His reasoning being that he could then control access and sell it for a big chunk. Fast forward about five years and the county widened the road and just widened the right of way well beyond that one foot. Now the developer had to deal with Development Control, but they were more reasonable than the previous owner.
Andy
What you are talking about here is sometimes called a "spite strip". You might find this previous discussion of these interesting.
https://staging.rpls.com/community/surveying-geomatics/spite-strip/
What you are talking about here is sometimes called a "spite strip". You might find this previous discussion of these interesting.
https://staging.rpls.com/community/surveying-geomatics/spite-strip/
I made the client aware that her idea might be construed as a "spite strip" that is why I want her to get a lawyer involved.
Sounds like she wants an undisturbed buffer along the rear of what I assume are existing parcels. Spite strips as I understand them are very narrow strips denying the adjoining property owners access to a road right of way in proposed or existing subdivision.
I find it alarming that government can control the future use of private property but a land owner is limited. If I owned the property I’d file it and let whoever wants to build a road in the future spend their money to prove I didn’t have a right to create an undisturbed buffer.
Sounds like she wants an undisturbed buffer along the rear of what I assume are existing parcels. Spite strips as I understand them are very narrow strips denying the adjoining property owners access to a road right of way in proposed or existing subdivision.
I find it alarming that government can control the future use of private property but a land owner is limited. If I owned the property I’d file it and let whoever wants to build a road in the future spend their money to prove I didn’t have a right to create an undisturbed buffer.
In some states this would be an illegal subdivision and potentially subject you to recurring fines until you fixed it.
I am all for private property rights, but that includes the adjoiners right to make beneficial use of their land. That right trumps your right to spite.
I don’t consider it any more spiteful than a conservation easement.
Precisely. Some slice their sandwich across the middle and some slice it from corner to corner. The result is the same. Two half-sandwiches.
In my opinion, enforcing compliance with a restrictive covenant would be for the future owner and would be a matter of law, not surveying standards. Our responsibility, at the time of creation, is to note, reference, and provide a graphic representation, if possible, for the records so those future owners can follow. If the heirs of the person making the restriction, or the future owners want to lift said restriction, they can go through the process with the municipality and courts to have the restriction vacated.
My limited understanding is, restrictive covenants are only enforceable by a home owners association created among them. A local government isn't going to swoop in and enforce, or defend, a covenant that you created on your property. The local government is only concerned with land use ordinance's and state laws.
The courts would say, you created the covenant, you enforce it. Which means YOU hire the attorneys and start litigation.
I typically see restrictive covenants filed as a separate document that references the legal descriptions of the parcels it is attached to. The deeds for each parcel would typically end with "subject to property taxes; easements of record; and covenants, conditions, and restrictions of record, if any."
My limited understanding is, restrictive covenants are only enforceable by a home owners association created among them. A local government isn't going to swoop in and enforce, or defend, a covenant that you created on your property. The local government is only concerned with land use ordinance's and state laws.
The courts would say, you created the covenant, you enforce it. Which means YOU hire the attorneys and start litigation.
I typically see restrictive covenants filed as a separate document that references the legal descriptions of the parcels it is attached to. The deeds for each parcel would typically end with "subject to property taxes; easements of record; and covenants, conditions, and restrictions of record, if any."
Your understanding is correct, although it doesn't have to be a home owners association. It could be just someone else who owns property that "benifits" from the covenent.
Although I am sure there are examples of a local goverment attempting to enforce a covenant out there.
I don’t consider it any more spiteful than a conservation easement.
You are taking this way off topic, but I can't wrap my head around that one. An action done with the sole intention of making life difficult for someone isn't more spiteful than one that isn't?
We must be speaking a different language.
