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ScottyMacESQ
ScottyMacESQ, Lawyer
Category: Real Estate Law
Satisfied Customers: 11347
Experience:  Licensed General Practice Attorney, Texas
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If a deed says land must be used for a park only & never rezoned

Resolved Question:

If a deed says land must be used for a park only & never rezoned for commercial or residential use can deed be changed for commercial use anyway? This is a superfund site that has been cleaned up
Submitted: 1 year ago.
Category: Real Estate Law
Expert:  ScottyMacESQ replied 1 year ago.

ScottyMacESQ :

Thank you for using JustAnswer. I am researching your issue and will respond shortly.

ScottyMacESQ :

Can you tell me what the deed specifically says?

Customer:

"Successors & assigns shall forever use this property only & for no other use than as a recreational area whether improved by appurtenant facilities such as that property becomes an active or passive public park. In no case shall the party of 2nd part, heirs or successors or assigns improve property or allow it to be improved for use as residential,commercial or industrial use, it being the intent of the grantor that this property becomes a public park & be used for no other purpose"

ScottyMacESQ :

And to be clear, there's no restraint or restriction on being able to sell it or transfer it on to other individuals, other than this restriction will apply to subsequent owners of the property?

ScottyMacESQ :

Did you see my follow up question? Please note that I am still here, awaiting your response.

ScottyMacESQ :

Should I continue to await your response, or may I assist the other customers that are waiting?

ScottyMacESQ :

My apologies, but I must assist the other customers that are waiting. Once you respond to my follow up question, I will respond as soon as I can. Please note that I may be assisting other customers or otherwise out of the office (depending when you respond). Thank you.

Customer:

! Property is owned by Gowanda Redevelopment Corp. They are handing it over to village of Gowanda to maintain AFTER it is a park- village wants to commercialize it for revenue. It is vacant land now. Itcwas the contaminated site of an old glue factory..toxic waste dumo

ScottyMacESQ :

Does the deed say anything about what would happen if the conditions were not met (i.e. there was some development on the site, etc...)?

Customer:

No

ScottyMacESQ :

The deed can only be changed by the party that made the deed. In reality, the deed itself is not changed, but rather there would be a new deed that would no longer have those restrictions on it. Where there is a deed that has a set of restrictions, that does not spell out what happens if those restrictions are violated, in NY it's called a "fee on limitation". "Fee" here refers to "fee simple" ownership, meaning there is complete ownership of the property, but the "limitation" refers to a specific restriction in that ownership. If the restriction is violated, the property reverts to the grantor of the property. Now that grantor can waive those restrictions. Further, if the grantor is no longer in business, and there's no successor to that grantor's property, then it would not revert.

ScottyMacESQ :

But limitations can be placed on a deed, and unless they are in and of themselves illegal, they will be enforced.

ScottyMacESQ :

Only the grantor could modify that, OR the local government can condemn through the process of eminent domain (where the government seizes the land for its own use). This can even be done for private commercial reasons, per the Kelo case.

ScottyMacESQ :

But the restrictions provide a "contingent" ownership interest in the grantor of the property, and as such any removal of those conditions by the government would be a Constitutional violation against that owner's 5th and 14th amendment rights (since it would be a deprivation of property without due process / just compensation).

ScottyMacESQ :

Again, if the grantor willingly agrees to remove these conditions, then there's no issue anymore. But the government cannot unilaterally remove the conditions.

ScottyMacESQ :

Hope that clears things up a bit. If you have any other questions, please let me know. If not, and you have not yet, please rate my answer. Please note that I don't get any credit for my answer unless and until you rate it a 3, 4, 5 (good or better). Thank you, XXXXX XXXXX luck to you!

ScottyMacESQ :

Did you have any other questions before you rate this answer?

ScottyMacESQ :

Are you there? Please note that I am still here, awaiting your response.

ScottyMacESQ :

Should I continue to await your response, or may I assist the other customers that are waiting?

ScottyMacESQ :

My apologies, but I must assist the other customers that are waiting. If there's nothing else, please rate this answer. Please note that I don't get any credit for the time (~40 minutes) and effort that I spent on this answer unless and until you rate it a 3, 4, 5 (good or better). If you feel that I have gone above and beyond in this answer (my average answer is about 10 minutes) bonuses are greatly appreciated. Thank you, XXXXX XXXXX luck to you!

ScottyMacESQ, Lawyer
Category: Real Estate Law
Satisfied Customers: 11347
Experience: Licensed General Practice Attorney, Texas
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