Amendment to Restriction Never Recorded

by OCM

Visitor Question: We bought a house on 1 acre in a non-zoned county "neighborhood" which is just a street.

Animals are restricted; however the real estate agent and the developer gave us a copy of an amendment that states we can have horses on these four lots only, signed by all neighbors at the time and one of the 3 developers.

Now six years later we are putting up our fence for the horses and one of the neighbors that signed the amendment is threatening us. The developer says that the amendment was never filed by him, even though the amendment states he would do so and he now says we can't have horses.

Editors Respond: We will answer the question we think you are asking, in the hope that it will be helpful to you even if we have misunderstood.

We think you are saying that the deed restrictions prohibited horses and other animals, but when you bought the property both your real estate agent gave you a copy of an amendment to the restrictions that had been prepared, which would allow you an exception for horses on the lots that you purchased. Now, you are saying, one of the signers is saying that you can't have horses. The developer is taking that person's side, and saying that the deed restriction amendment or change was never recorded with your county, and therefore is null and void.

If that is indeed the situation, we can only shake our heads and say that this is a poor reflection on the character and honesty of the developer and the neighbor, and a reflection of poor professional judgment on the part of your agent, who should have made sure that the document was recorded and therefore valid.

Keep in mind that we are not attorneys, but we would say that based on what we as planners know, we think that the lack of a recorded change to the original deed restriction means that if you proceed to keep horses, you will be susceptible to an enforcement lawsuit from any of the neighbors at any time.

We see two possible courses of action for you. One is to talk with the rest of your neighbors who were property owners at the time of your purchase, and see if you can mobilize them to speak up and try to convince your one neighbor who is now objecting. (The developer's opinion on the matter is not really relevant unless the developer still owns some lots, in which case the same logic applies.)

If persuasion doesn't work, then you may need to see an attorney about a civil suit, if the horses matter enough to you. Discuss the facts of the potential case and whether it is better to sue the real estate agent, developer, or both. This might be a costly undertaking if you lose, so of course you have to discuss that possibility with the attorney as well.

This instance points out how important it is for potential homeowners to make sure that promises made just prior to closing are actually kept. In this case, our site visitor had pretty good evidence that everything was as he or she intended. So prospective owners need to be very careful also that documents that are supposed to be recorded in the public record actually make it to filing. We bet that the real estate agents and title company involved would have remedied the situation if it were called to their attention at closing or even in the next day or two after closing.

Don't let any of the involved parties rush you into closing.

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