Deed Restrictions and Setbacks (long)
My wife and I are under contract on a riverfront lot where we plan to build a vacation home. It's a corner lot in an old neighborhood with no HOA. The financing for our land and construction has been approved, and we're very close to hiring a builder.
Today, the title company issued their title commitment, which included a set of deed restrictions that had not been previously disclosed, and had apparently been unknown to the seller or his agent. One of the restrictions has been interpreted by the title company to require a 30' setback on each street, and since the lot is only 55' wide would make the lot unusable for a home.
The restriction states:
"No improvement shall be constructed on said property within easement lines or nearer than 30 feet to the front property line, nor nearer than 10 feet to side property lines, except that in the case of corner lots no improvements shall be constructed within 10 feet of side property lines adjacent to streets 30 ft. setback."
I don't know exactly what that means. The title company believes that in means that there is a 30' setback on each side of the lot that is bordered by a street. They have put an exception from coverage (they will not cover losses resulting from...) in their title commitment that states:
"30 foot front setback line; a 10 foot side building setback line, except corner lots on streets which shall have 30 foot building setback lines, as recited in Volume 124, Page 387-388, Comal County, Texas Deed Records."
Like I said above, I don't know what the restriction means, and I'm not sure it means what they think it means.
The selling agent, who lives in the neighborhood, has told our agent that 75% of the homes in the neighborhood violate the deed restrictions and so no one could ever complain or sue. She also believes, I think incorrectly, that the restrictions have expired. The restrictions state that they automatically renew every 10 years, unless amended or canceled in writing by a majority of homeowners and filed with the county. This has not happened. She has also told my agent that since no one follows the restrictions and they have never been enforced, then they can no longer be enforced.
The title company told me that they have interpreted the deed restriction correctly, but they also told me that they think it's expired. They could not tell me why it's included as an exception if it's expired.
The lot is being surveyed. The fieldwork is done, and the survey is supposed to be done Monday. The surveyor told my agent that he believes there is NO setback.
I left a message for an attorney late today, but I don't expect to hear from him until Monday.
I don't expect anyone on this board to be able to solve this problem, but I hope you can help me figure out what form a solution might take.
What value does the survey have? If it is signed and sealed with no setbacks, does that somehow protect me?
Is there anything to the argument that deed restrictions that are not followed or enforced are no longer enforceable?
What kind of documentation or assurances should I require to be satisfied that I can build without future potential repercussions?
Lastly, what do you think that deed restriction means?
These are all questions that Ill ask the attorney I have called. In the mean time, I appreciate any advice you all might have.