Are Deed Restrictions binding??

[mlb]

I recently, today, bought a home at the Jersey Shore and in the Deed for the house there is no mention of a boat slip. However, I did learn of a deed for a boat slip which contains a restriction which says:

"That any future owner of this lot must sell or dispose of this lot in conjunction with and as part of the sale of Lot 3, 10.01, and 10.02, Block 3207, to which lots in this section have been assigned, designated, or conveyed"

I purchased Lot 3, and as far as I read a boat slip comes with it. The developer is trying to sell it separately, and also telling me if I don't buy it he will sell it to someone else (someone other that Lot 3, 10.01, or 10.02). Is this true, and what, if anything can I do about it?? Any help would be appreciated.

[KC405]

Well , there are a few possibilites here. The restriction on the sale of the slip with the other lots could have been valid long ago but subsequent sellers and purchasers could have contracted or agreed among each other to render the restriction null and void. Also the deed provision may only have been applicable to the first purchasers of the lots and not all subseqent purchasers.

On the other hand, the clause in the deed for the slip may possibly be construed as an easement, especially if the slip is land-locked by the other lots, but this is a long shot.

If you had an attorney handle the closing you should confront him with these new facts. You should take a look at the survey too and maybe you will discover something there. You can also contact the title insurance company that issued your title policy and maybe they will look into the matter.

[mlb]

Thanks for your reply. The slips are not land locked, they are across the street next to unbuildable wet lands. And, I'm not sure if they are null and void. They were passed to him as an owner/developer of the three lots with the restrictions in place. Now that I'm the last lot to sell, doesnt the restriction still hold, or can one change it at their discreation.

[KC405]

The deed restriction you describe could be a "restrictive covenant" and these covenants often are enforceable provided they were created correctly. As I read the deed restriction it appears that the seller was required to grant a 1/3 interest in the slip to each of the purchases of each of the three lots. The deed restriction says ".....must sell or dispose of this lot in conjunction with and as part of the sale of Lot 3, 10.01, and 10.02..." So it seems that each of the three lots should have an ownership interest in the slip.

The law of restrictive covenants varys by state and can be tricky. Take a look at this link for a definition of restrictive covenant http://en.wikipedia.org/wiki/Restrictive_covenant

Take a look at this link too http://www.lawchek.com/resources/forms/que/restcoven.htm

If you had an attorney handle your closing you should bring this deed restriction to his attention.

[mlb]

I agree. But the builder has three such deeds which all read the same way. Now what?? Oh, and FYI I did not use an attorney for my closing.