Deed Restriction Just Became Known After Six Years

by Jennifer
(Collin County, TX)

Visitor Question: What if a two acre piece of land was purchased, and the seller and the title company stated the land had restrictions. Also on the land listing it did state that there were no known restrictions.

The new owners of the land have now lived there for six years in a manufactured home that has a foundation. And it has just now come to their attention that the land has manufactured home restrictions. Where do they stand legally with their home and land?

Is there anyway to have the restrictions lifted on their 2 acres?

Editors Reply: Unfortunately judging by our mail, it is fairly common to have deed restrictions not disclosed at the time of sale.

If a title company explicitly stated that there were no restrictions, one of the first conversations should be with that title company. Point out the evidence you (or others) have that such restrictions exist.

By the way, you don't have to wonder if the covenants are real or if this is just a rumor. You can go to your county or city recorder's office and insist that they help you verify the existence of the restrictions.

Supposing the deed restrictions are valid, the first consideration to point out is that these private agreements can only be enforced by the person who originally imposed the restriction (or his or her heirs), by another property owner covered by the same restriction, or by a property owner's association on behalf of a group of owners.

In other words, a local government can't enforce these agreements, and usually won't get involved at all.

So enforcement has to go through a court typically.

As to how the restriction can be lifted, the actual wording of the document may give you a clue about that. Sometimes covenants will provide a way that they can be amended, or set an expiration date. Our informal observation is that expiration dates are quite common in Texas subdivisions, but if you have a single rural lot, there may well be no provision for expiration. So first, the owner of this property should read the wording carefully.

Some states provide an automatic expiration of deed restrictions unless a homeowners association file to have them extended.

You will need to check with an attorney licensed in the state of Texas about the procedure for modifying the particular restrictions in question. Texas has different rules for different sizes of municipalities, so we cannot give long-distance advice.

In general changing a restriction on a single lot involves going back to the original person who set up the restriction to get formal written approval. This may mean locating heirs of a deceased person and getting the agreement of all heirs, so it can be quite a chore.

Again, the covenants themselves may detail how to make changes, and if there is no guidance there, add this to the list of questions for the attorney. Being prepared before you seek legal advice will help keep the legal bill as low as possible.

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