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LawTalk
LawTalk, Attorney
Category: Real Estate Law
Satisfied Customers: 35309
Experience:  I have 30 years legal experience. Additionally, in CA I held a Real Estate Broker's license.
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My deed property states that the 'parties of the second part

Customer Question

my deed for my property states that the 'parties of the second part hereby covenant and agree that the above described premises will not be used for business or commercial purposes and further covenant that the above described property will not be subdivided or sold, as subdivisions' Does this covenant run with the land, i.e. if sold to a third, fourth, or fifth party, is this covenant still in effect. The property is located in North Dakota. Also, is a rezoning to a multiple family dwelling on this property in conflict with the parameters of this covenant?
Submitted: 1 year ago.
Category: Real Estate Law
Expert:  LawTalk replied 1 year ago.

Good evening,

I'm Doug, and I'm sorry to hear of the confusion. My goal is to provide you with excellent service today.

I'm sorry to have to say that covenants like the one you described---a Restrictive Covenant--- always run with the land and regardless of how many times the property may change hands, and whether or not the covenant language is left out of a later deed transferring title, the covenants are enforceable and bind all owners of the property.

If the area has been rezoned to a multi-family zone, while yes, the new zoning law is in conflict with your particular lot---the covenant may still be enforced through the court system.

There is a way to avoid the covenant however it may be difficult if you cannot get the cooperation of your neighbors who may benefit from the covenant. If you file an application for a planning permit to remove or obtain a variance of the restrictive covenant, notice of the application must be given to owners and occupiers of land in your geographical area who are being arguably benefited by the covenant. Also, usually you must post a notice of your application to remove the covenant on your property and post a similar notice in the paper.

While this can be an effective way to get around the covenant, I would strongly urge that you retain a local real estate law attorney to assist you in getting through the legal hoops. In the end, if your neighbors don't object, then it is possible to have the covenant removed.

You may reply back to me using the Reply link and I will be happy to continue to assist you until I am able to address your concerns, to your satisfaction.

Please remember to rate my service to you so that I can be compensated for helping you. Thank you in advance.

I wish you and yours the best in 2015,

Doug

Customer: replied 1 year ago.
Actually, Doug, we are the aggrieved property owners. The land next to ours has been rezoned. Accordingly to North Dakota Century Code, they only need to post the rezone in the newspaper. This is not our primary residence, and therefore, did not see the notice of public hearing on the rezone. The property has been rezoned from single family residence to multi family residence. The property lines are also in dispute. This is lake property, and we do not wish to have neighbors so close to our residence. We have consulted an attorney, but are questioning if an injunction against the neighbors is necessary. As you can ascertain, we do not want the covenant removed. Please advise.
Expert:  LawTalk replied 1 year ago.

Hi,

If you are not living there and the neighbor jumped through all the right hoops, then you are out of luck with regard to the rezoning. The fact that you were not aware of the application for variance and rezoning is not a legal argument to somehow have the zoning commissions decision overturned.

As for property line dispute, you will need a survey of your property lined prepared and perhaps file suit to reclaim your property. I'm afraid that I simply do not see an injunction working in this circumstance if the neighbors avoided by the procedural rules in place to have the place rezoned.

I suggest that you go back to your attorney---perhaps they are aware of facts that would allow you a different remedy---but I don't see one here based on what you have shared with me. I am sorry.

This seems like a very crucial matter for you, and your questions and issues suggest that an in-depth conversation might best suit your needs. If you are interested, for a nominal charge I can offer you a phone conference as opposed to continuing in this question and answer thread. I will make that offer to you after I get this posted to your question thread. All you need do is accept the offer if you would like me to call. Let me know if you don't want a call and I can continue here with an answer.

You may reply back to me using the Reply link and I will be happy to continue to assist you until I am able to address your concerns, to your satisfaction.

Kindly, remember to rate my service to you. That is how I am credited for assisting you.

I wish you and yours the best in 2015,

Doug

Customer: replied 1 year ago.
In the end, does the covenant still remain, and is the rezone, i.e. multi family, considered a violation of the covenant.
Expert:  LawTalk replied 1 year ago.

You asked: In the end, does the covenant still remain, and is the rezone, i.e. multi family, considered a violation of the covenant. No, there is a procedure in place for seeking a variance to eliminate the effect of the covenant and if that is followed---and it sounds as though it may have been followed, then the variance is legal and would not be deemed a violation of the covenant.

You may reply back to me using the Reply link and I will be happy to continue to assist you until I am able to address your concerns, to your satisfaction.

Kindly, remember to rate my service to you. That is how I am credited for assisting you.

I wish you and yours the best in 2015,

Doug

Customer: replied 1 year ago.
They did not seek the rezone as an affront to the covenant, as they were not aware of the covenant, nor was the Board that approved the rezoning. The covenant was brought to their(property owners and Board) attention by us, after we were aware the rezoning was granted.
Customer: replied 1 year ago.
Is it still possible to rescind the rezone, since there has been new information brought to the Board's attention?
Expert:  LawTalk replied 1 year ago.

It is possible and you are going to need a real estate attorney/zoning law attorney to fight this battle.

Doug

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