Not Informed About Covenants and Restrictions

by Eric
(Smithville, MO, USA)

Visitor Question: What happens when the sellers check the box on the sellers disclosure that says there are no covenants and restrictions and then you move in and your nosey neighbor informs you that there are? It is a house on three acres in the county and it completely threw me off guard because we moved out of an HOA to get away from these kinds of things (nosey neighbors).

Editors Reply: You are learning that the absence of an HOA does not mean that you do not have deed restrictions or covenants. Rural property is just as likely to have covenants as more urbanized areas.

Nosey neighbors come in all types of areas, urban to rural, as well!

You raise a particular issue, which is reliance on a sellers disclosure document. This takes different forms across the U.S., but often it is referenced in your sales contract and therefore should be taken very seriously by a seller.

The question becomes whether you want to take any legal action against the seller. That would be an expensive move on your part, so you have to consider how much hassle and expense will be involved in complying with the restrictions and covenants.

Even if you consulted a licensed attorney in your state and decided to file a lawsuit, the seller might claim ignorance of the restrictions, and conceivably actually could have been ignorant of them.

In addition to the issue of the sellers disclosure, the real estate agent to some extent and the title company to a large extent should have been your protection against this issue. Unfortunately many times restrictions and covenants only come to light a few days before closing, and if work is shoddy, may not ever be disclosed to the buyer before closing. Yet title companies really need to step up to take more responsibility for this.

We are sorry to conclude that home buyers now need to start protecting themselves by asking real estate agents about restrictions early in the decision-making process. Some will not even know how to deal with the question, thinking that no homeowners associations equals no restrictions. But as you found out, that is not true.

Buyers also need to insist on having time to review the title company's work long in advance of closing. We admit that it can be tricky to make sure you do not commit to financing and take other actions that are difficult to undo, prior to learning about the existence and nature of deed restrictions. But increasingly the communications we are receiving from our visitors show that this is the only way for many buyers to protect themselves.

Other than being irked about the situation, you now have to decide what to do. It really isn't nosey neighbor's fault that these restrictions exist, but nosey neighbor might delight in harassing you if you violate them.

Options are to comply, sue someone such as the seller and title company, or let it go and move again if you cannot comply. These situations are really unfortunate, so the entire community development field needs to be attentive to better information for home buyers about covenants.

Comments for Not Informed About Covenants and Restrictions

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Due diligence
by: Anonymous

My broker told me she could not find any restrictive covenants. This happened after expressing we would not purchase if there were any and after giving her my due diligence check. Two days later she found three documents with restrictive covenants. This was after a contract was signed, and I lost my due diligence money. Is that not considered negligent omission?

Editors Comment: We are so sorry to hear of this and similar instances. The real estate industry needs to do a better job of coordinating searches for restrictions. As to whether this is something that you should pursue legally, you will need to consult an attorney familiar with real estate practice in your state. The attorney will evaluate the specific facts of your situation, as well as state law and case law. You call this person a broker, but if she is not in fact the head of the real estate company, be sure you take your complaint to the chief executive of the company before incurring the expense of consulting an attorney.

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