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If an amendment was made to deed restrictions by a developer

Customer Question
but it excluded 6 lots...
if an amendment was made to deed restrictions by a developer but it excluded 6 lots that was owned by property owners prior to the developer purchasing the other lots does this mean that these 6 lots are excluded from the deed restrictions?
Submitted: 2 years ago.Category: Real Estate Law
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Answered in 22 minutes by:
9/22/2015
Real Estate Lawyer: socrateaser, Lawyer replied 2 years ago
socrateaser
socrateaser, Lawyer
Category: Real Estate Law
Satisfied Customers: 39,387
Experience: Attorney and Real Estate broker -- Retired (mostly)
Verified

Hello,

The answer to your question is "yes," unless someone successfully challenges the exclusion in court under the doctrine of implied reciprocal servitude/negative easement. The doctrine provides that proof of a mistake in the creation of a restrictive covenant can be imposed on a property owner, if the challenger can prove that the developer intended the restrictive covenant to apply to the entire community, including the unrestricted lots.

This is a very difficult burden of proof for a challenger, and the court will rarely impose the covenant against the unrestricted owner. However, because it is a legal doctrine that is possible, even though rarely applied, I am mentioning it to be thorough.

I hope I've answered your question. Please let me know if you require further clarification. And, please provide a positive feedback rating for my answer -- otherwise, I receive nothing for my efforts in your behalf.

Thanks again for using Justanswer!

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Customer reply replied 2 years ago
if we do not challenge this portion of the amendment then we do not have to follow the deed restrictions, is this correct?
Real Estate Lawyer: socrateaser, Lawyer replied 2 years ago

If you are the homeowner whose deed does not fall within the scope of the restrictive covenant, then you are free of the restriction unless someone else successfully challenges the issue in court.

As the homeowner, you don't need to challenge the restriction to impose it on yourselves. You could simply grant yourselves a deed and add the restriction to the new deed. Obviously, if your goal is to avoid the restriction, then you need to nothing, because there is no restriction at this time.

I hope I've answered your question. Please let me know if you require further clarification. And, please provide a positive feedback rating for my answer -- otherwise, I receive nothing for my efforts in your behalf.

Thanks again for using Justanswer!

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Customer reply replied 2 years ago
how could this developer make changes to the deed restrictions without the 6 lots being included when the original deed restrictions covered these 6 lots
Real Estate Lawyer: socrateaser, Lawyer replied 2 years ago

I would have to review the original deed and any amendments in order to answer your new question. If you are interested in a comprehensive review, I will send you an additional services offer, which you may accept or decline at your convenience.

I hope I've answered your question. Please let me know if you require further clarification. And, please provide a positive feedback rating for my answer -- otherwise, I receive nothing for my efforts in your behalf.

Thanks again for using Justanswer!

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Customer reply replied 2 years ago
please give me a quote
Real Estate Lawyer: socrateaser, Lawyer replied 2 years ago

Website policy does not permit me to negotiate price or terms in this forum. All I can do is to provide the offer, as I have done. You may accept or decline, and if we cannot come to an agreement, then you can request a refund from the website.

I hope I've answered your question. Please let me know if you require further clarification. And, please provide a positive feedback rating for my answer -- otherwise, I receive nothing for my efforts in your behalf.

Thanks again for using Justanswer!

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Customer reply replied 2 years ago
let me clarify this, since the original deed restrictions where amended without these 6 lots, this mean these 6 lots do not have to follow the original or the amended deed restrictions, is this correct?
Real Estate Lawyer: socrateaser, Lawyer replied 2 years ago

An amended master deed generally supersedes and replaces any previous master deed entirely. So, the answer to your question based upon general principles of common law is, "yes," the six lots would not have to follow the original or amended deed restrictions.

However, individual state jurisdictions may have statutes or case law that deviates from general common law. Also, the text of the amended master deed may operate to maintain some or all of the original master deed restrictions. Consequently, there are lots of potential "gotchas" here that I cannot analyze competently without a more thorough investigation.

I am well aware that your goal in coming to Justanswer is to obtain an extremely cost-effective answer to a legal question. Unfortunately, your question falls outside the scope of those issues which can be competently answered easily or with certainty.

So, if certainty is what you require, then your only option is to hire legal representation, because a careful review of the master deeds, and the state laws concerning same will be required, in my opinion. Otherwise, whether it's me or some other contributor/attorney, at this website, or elsewhere -- any answer you receive will be no more than an educated guess.

I hope I've answered your question. Please let me know if you require further clarification. And, please provide a positive feedback rating for my answer -- otherwise, I receive nothing for my efforts in your behalf.

Thanks again for using Justanswer!

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Customer reply replied 2 years ago
thank you for your time
Real Estate Lawyer: socrateaser, Lawyer replied 2 years ago

You're welcome. I hope I have earned a positive feedback rating from you.

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socrateaser
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Category: Real Estate Law
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