How to Be Sure House Not Covered by Restrictions

by Lynn
(MO)

Visitor Question: The house I am buying is the only house built on estate land. The owner of the house bought this lot and another 24 acres of land from a development company in 2005, in the state of Missouri. This house is listed under he and his wife's name. But the restrictions dated 2004 and 2006 both clearly state that Lot 10 is under the restriction. Now the owner of the house on Lot 10 who also is the majority owner of the development company wrote a note in our sales contact to remove lot 10 from the restriction.

My question is since he isn't the original development company who put a deed restriction on Lot 10, does he have the right to remove any lot from the restriction?

I read that master restriction follow the land, not the owner. Do I need to go to county remove the restriction?

My realtor is saying this house was built before the developer started the project, and the house should be grandfather out of the restriction? Plus the owner wrote a note in our contract saying no further action is required.

Please help me to clarify I am indeed not going to be bound with any deed restriction. What's the proper procedure for me to make sure?

Editors Reply: To make absolutely sure of whether the home you are buying is covered by a deed restriction, you will need to consult an attorney licensed in Missouri. The attorney will need to examine all documents in question, and then compare to Missouri statutes and case law developed through lawsuits.

We can offer a few observations from a group of planners about this situation. You ask whether the current owner, who is not the person who wrote up the deed restrictions in the first place, can remove the restrictions by adding words to the sales contract. Our general answer to this would be no. As you correctly understand, the deed restrictions run with the land in most states, including Missouri, so the current owner probably does not have the right to do this.

We say "probably" because Declarations of Covenants, Conditions, and Restrictions can and do set forth their own rules for changing the restrictions. Sometimes it can be very easy to change them, and sometimes it can be devilishly difficult. So it is possible, but not likely, that the restrictions document says that subsequent owners can change the restrictions before they sell the property. This is exactly why you need an attorney to analyze the exact language if you want to be completely sure.

Of course as you already know, you can read the restrictions yourselves and see if they imply any such right for owners to change the restrictions on their own.

You ask also if you should get the county to change the restrictions for you. No, you can't. We feel completely sure of that answer because all over the U.S., deed restrictions are private matters not made or enforced by any level of government. The county can furnish you with copies of recorded documents, including deed restrictions, but you seem to already have those documents.

Also we can say that your realtor's reasoning may or may not be material to the situation. What matters is whether the restriction was in place before the home was constructed. Your language was about the property being "developed," so we just want to make sure you are clear that the relevant information is about actual construction of your house.

Another related point is that even if your house itself is found not to be covered by the deed restrictions because your house pre-existed the covenants, subsequent additions to the property that you might want to make will be subject to the CC&Rs unless you determine that your lot cannot be touched by the restrictions.

So you are in a fairly confusing situation, and if the nature of the restriction is such that you feel you can't live with it, it would be best to have a Missouri attorney make a quick determination for you.

Comments for How to Be Sure House Not Covered by Restrictions

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No more CC&R
by: Anonymous

As a result, it turns out ok for us. They removed us from CC&R the time of closing even though this house is still a part of the Estate. Asked the city, cannot remove this house out of the Estate, but it seems this house won’t have any CC& R.

Response to my deed restriction question
by: Lynn

I have talked to an attorney in MO who advised me to get an updated title commitment from the title company before closing. The rest of the lots on platted Development land are currently used as corn field, according to the Realtor. The 2nd development company went out of the business a few yrs ago, but my attorney is saying she still sees the second development company is registered in the state of MO. Realtor is saying the current owner of the house owns the rest of the land, but we do not see any supporting documents... therefore my attorney is saying to let them deal with the issue, as long as they give me an updated title commitment removing all the restrictions and conditions from 2014 (1st. Development company) & 2016 (2nd developer company revised), my attorney can review it before closing.

My question is after reading my above summary, what do you think would happen if the title company would be able take care of the issue and remove us from the restrictions and conditions legally? Are they going to hold the responsibilities years later when future development company is asking us to join an HOA?

The Realtor is still listing this Lot as a part of the estate selling the rest of the lots separately, I have raised the issue to the listing Realtor to remove this Lot from being included on the website, my argument is after the closing, this Lot shouldn’t be a part of the Estate and they should not have been listed together, do I have the right to ask Realtor to remove the pictures of the house from the listing of selling the rest of lots?

Thank you.

Editors Respond: Obviously you should listen to your own attorney, who has access to many more particulars, to case law, and to local customs. Readers, we are sure that this matter has been resolved by now; we would not give further advice while a closing was pending, unless it was our frequently repeated advice to seek advice from a state licensed attorney.

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