deed restrictions

[CindyR]

any one have any experience with deed restrictions?

a friend is interested in buying an acre lot up here in new river. the owner from 2005 bought 2 acres and sold off one acre during the boom. the owner of the 2 acres supposedly added a deed restriction before they sold the one acre to limit future development to site built homes only. the buyer of the one acre has defaulted on the loan and it is now for sale as a short sale. the MLS listing does not report any land use restrictions. the recorded deed for the prior sale does not include any restrictions. the original 2 acre seller probably still does not want to live next to a manufactured home (if they ever get around to building on their vacant lot) but unless these restrictions are recorded somewhere there does not seem to be any way to enforce them, right? And, since there is no hoa, it would only be the original seller who would be interested in trying to enforce them.

Can the buyer be forced to adhere to these restrictions if they do not know of their existence? Can their be such restrictions if they are not written and recorded anywhere?

Any one know a local real estate attorney who might be familiar with such matters?

 

[Mike Kennedy]

Where in Arizona?

 

[Meandering]

Deed restrictions have to be in writting and recorded. They may be recorded on the subdvision map. you would have to have a good title search to know if there are restrictions.

HOA has nothing to do with deed restrictionn or enforcement.

If the deed restriction is actually a "condition" of the deed, violating it could cause a default of the owner's title back to the person and heirs of the person that placed the restirction.

You need a lawyer to answer your questions.

 

[Jo Ann Meyer Stratton]

Anything that affects the title of the property has to be recorded. If not recorded it doesn't apply. Recording of a document years later would create a cloud on the title. Is this a FSBO or listed in MLS? Has an offer been made, an escrow account should have been set up with a title company. Original offered should have had some comments in the purchase agreement or escrow instructions. Talk to the title researcher at the title company to get some final answers. Because Arizona is a "race to the courthouse" state, the recording date takes precedence any signature date. So if nothing was recorded, then any future restrictions would not apply unless all owners affected by the restriction agree, and their agreements are recorded.

 

[CindyR]

HOA has nothing to do with deed restrictionn or enforcement.

Actually, that is not always the case here in AZ. I own a property in a platted subdivision in Yavapai County, AZ and there is a clearly recorded set of CC&R's from the original developer in the 1950's detailing land use, building restrictions, septic requirements, etc. One lot owner has been blatantly violating said restrictions and the County refuses to enforce the restrictions. They even gave him a permit for something specifically forbidden by the CC&R's. They said they do not enforce CC&R's and we could sue the guy individually or form a group to do so. They suggested we form an HOA if we wanted to enforce them ourselves.

 

[CindyR]

Where in Arizona?

Here in New River, AZ (just north of Phoenix) - Maricopa County