Real Estate Law
Have Real Estate Law Questions? Ask a Real Estate Lawyer.
Not a problem, everyone deserves some time off.
Thank you for your question. Since it appears that LawPro is still offline and no one else has chimed in, I will be happy to help.
I cannot give a firm legal opinion on your specific situation not just because of the Terms of Service here and the fact that I don't have the entire deed, but also because not having a title report in front of me keeps me from having enough information to say "yes" or "no" to the legality of what you have been told. But I can tell you how it *could be* legal. Many people can then pore over their own title reports and see where the key document(s) are supposed to be. Even then, there can be defects that make one thing originally invalid, countered by other facts (including passage of time) that can for all intents and purposes "cure" any defects.
All well-written deeds will include language of some sort saying ". . . subject to all encumbrances [and something else, specific words vary--saying easements, burdens, covenants or such] of record." IF the Declaration of Covenants Codes and Restrictions for the HOA was done correctly, something in there will make it apply to every specific parcel in the project. So, A + B = C (covered by HOA), even if B (the deed) does not mention the HOA by name. This can apply even if the land was subdivided after the HOA was formed, IF (and usually only if) either 1) the parent parcel was included in the original Declaration, or 2) the parcel was "annexed" into the HOA properly.
I just got a ruling from a judge last week saying that such is the case for a specific neighborhood. The lots were annexed after the Declarant sold them to another developer.
This should help you sort it out.
It has been some time since you answered and I wanted to thank you.
To make sure I understand your answer, if someone has a deed that makes no mention of being part of an HOA nor has the phrase ". . . subject to all encumbrances...", that doesn't necessarily mean it is free and clear of being part of an association, having easements against it, etc. In other words just because I don't know there are other documents out because my deed doesn't mention these obligations doesn't let me off the hook.
What prevents me from filing false claims on other people's property? As an example, suppose I were to file a easement against my neighbor so I can use his driveway?
Or here's another one, can an HOA file an amended declaration approved by a 66% general vote that redefines my part of my deeded property as common element property or limited common element property?
DISCLAIMER: Answers from Experts on JustAnswer are not substitutes for the advice of an attorney. JustAnswer is a public forum and questions and responses are not private or confidential or protected by the attorney-client privilege. The Expert above is not your attorney, and the response above is not legal advice. You should not read this response to propose specific action or address specific circumstances, but only to give you a sense of general principles of law that might affect the situation you describe. Application of these general principles to particular circumstances must be done by a lawyer who has spoken with you in confidence, learned all relevant information, and explored various options. Before acting on these general principles, you should hire a lawyer licensed to practice law in the jurisdiction to which your question pertains.
The responses above are from individual Experts, not JustAnswer. The site and services are provided “as is”. To view the verified credential of an Expert, click on the “Verified” symbol in the Expert’s profile. This site is not for emergency questions which should be directed immediately by telephone or in-person to qualified professionals. Please carefully read the Terms of Service (last updated February 8, 2012).