We are in the process of buying a home, and everything has gone well thus far up intill the title search. The property was built in a subdivision in the 60s. The original creator and developer of the subdivision put into the deed a number of requirements that the property much meet, including the following:
not more than one dwelling on the lot, no part of house to be used for commercial purposes, the house must clapboarded or shingled with cedar or composite shingles or equivalent, no animals except dogs or cats, and building is to be at least 20 ft from road, 10ft from sideline and 5feet from rear line of property.
All of this sounds reasonable except in the deed, the original owner reserves the right for her and her heirs forever a right of entry for the breach of any said conditions to claim a forefiture of such breach. If I’m reading that correctly, if we were to break one of the deed restrictions, one of any number of heirs could come for our property.
We reached out to the lawyer who did the title search and are waiting for a response. There are a bunch of homes in the sub division, and the ones that were reviewed during the title search all had this stipulation as well.
While these deed restrictions all seem reasonable to me, it seems nuts that someone could take our home if we breach them. Just curious if anyone has run into this or anything like this before.
Right of forfeiture on deed
byu/banananahammock116 inRealEstate
Posted by banananahammock116
2 Comments
One thing to find out is whether or not that deed restriction is still valid. For example, if you go back to some earlier deeds on properties, there were restrictions that only white people could live in the community. Obviously that’s a fair housing violation and it’s no longer valid. This deed restriction may not be valid, but you’re absolutely correct in making sure that it isn’t. I’d be incredibly surprised if that was going to remain in place and there were lenders that would loan on it.
>All of this sounds reasonable except in the deed, the original owner reserves the right for her and her heirs forever a right of entry for the breach of any said conditions to claim a forefiture of such breach.
What matters is how the deed restriction would be enforced and what penalties are associated with it. It doesn’t *really* matter if they have a right to enter the property. They’d need an Order signed by a judge to do that. And no one is going to pay an attorney to obtain one if there’s no penalties. There would be no point.
I’ve seen this in the context of bizarre, 100+ year old deed restrictions surrounding alcohol on the premises. People actually did this before prohibition, and they’re still on the deeds. The thing is, there’s no penalty for violating it. So it’s just basically a novelty deed restriction, for lack of a better term. If it doesn’t allow them to take possession or assess damages, it’s really mostly meaningless.
You need an attorney to review it carefully. You need an attorney to carefully review your title policy for any exclusions as well. I’m just commenting so you know that this isn’t *that* uncommon. It’s unusual, but not unheard of. An attorney in your state can review it. (An attorney you pay, not an attorney for the title company. I know different states are different.)