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  1. #11
    Join Date
    Nov 2013
    Posts
    6,196

    Default Re: Undisclosed Covenances

    It's possible that the deed and the restrictions were filed and recorded separately and the deed just makes reference to any encumbrances if any.

    But I have to agree with you JK, that the title search should have found any recorded documents that attached to the property. For a title company saying that it is not their job to find such documents is just absurd.

    OP, have you talked to your lender about the problem? You did pay for a lender title police right?

  2. #12
    Join Date
    Jan 2019
    Posts
    6

    Default Re: Undisclosed Covenances

    Yes, we did pay for a lender title policy. We havenít told the lender about the issues yet but we have found a lawyer to hopefully straighten some
    Of this out

  3. #13
    Join Date
    Jan 2006
    Posts
    38,429

    Default Re: Undisclosed Covenances

    Can you answer my questions where and when the encumbrances were created and when and where they are record3d?

    andd a lenders title policy protects the lenders interest, not yours

  4. #14
    Join Date
    Mar 2013
    Posts
    16,790

    Default Re: Undisclosed Covenances

    Quote Quoting Erinm2722
    View Post
    Yes, we did pay for a lender title policy.
    How about an owner's title policy? They are two different things. Might as well not bother with your lender. The lender won't care what your problem is as long as you are making the payments.

    If the restrictions are legit, you are likely going to have to sue the seller and subpoena the neighbor to testify as to the seller and realtor knowledge of the restrictions.

  5. #15
    Join Date
    Jan 2019
    Posts
    6

    Default Re: Undisclosed Covenances

    [QUOTE=jk;1108808]Can you answer my questions where and when the encumbrances were created and when and where they are record3d?

    andd a lenders title policy protects the lenders interest, not yours[/QUOTE

    The county courthouse had 58 pages of these encumbrances on file. The neighbor who placed them on the property 15 years ago went and got
    A copy from the courthouse after he figured out that we were totally unaware of them and had already closed on the sale.

  6. #16
    Join Date
    Jan 2006
    Posts
    38,429

    Default Re: Undisclosed Covenances

    From Texas statute:

    Restrictive covenants governing the use and occupancy of the property and all dedicatory instruments governing the establishment, maintenance, or operation of this residential community have been or will be recorded in the Real Property Records of the county in which the property is located. Copies of the restrictive covenants and dedicatory instruments may be obtained from the county clerk.
    while that section refers to subdivisions, the mention of covenants will apply to all real estate.


    I presume the records were held by the county clerk. It appears they hold many records but the fact they hold them does not mean it is a court record.

    That in itself isnt reslly important though. What is important is the covenants are “of public record”.

    Did the deed include some verbiage such as

    subject to all liens, encumbrances and easements of public record?

    if so, the onus is upon the buyer or some entity they hire to search for issues of public record. That is what a title search is meant to discover. Have you read the title report from the title company?





  7. #17
    Join Date
    Jan 2019
    Posts
    6

    Default Re: Undisclosed Covenances

    Hi, yes we read the title search report and it says the property is subject to easements 1, 2 and 3 only. The railroad company has one, power company has one and a neighbor has one so he can access his pond south of the property.

  8. #18
    Join Date
    Jan 2019
    Location
    Pugetopolis
    Posts
    44

    Default Re: Undisclosed Covenances

    I guess the question remains is by what legal mechanism did these covenants get attached to the property? Did your neighbor previously own the land? Did he give some consideration to a previous owner? Or did he just march down to the courthouse and record them by his own fiat? I kind of think it's the latter.

  9. #19
    Join Date
    Nov 2013
    Posts
    6,196

    Default Re: Undisclosed Covenances

    Quote Quoting adjusterjack
    View Post
    How about an owner's title policy? They are two different things. Might as well not bother with your lender. The lender won't care what your problem is as long as you are making the payments.
    I wouldn't be so sure of that Jack. If the property value is now 50% of what it was appraised for because of the restrictions, then the lender may well be interested.

  10. #20
    Join Date
    Jan 2019
    Posts
    6

    Default Re: Undisclosed Covenances

    The person who placed the
    Covenances on the property used to own the land. Before he sold it around 15 years ago, he went through a judge and the court to have the covenances legally placed on the property.

    I want to add that our realtor is a very large company in TX and they have never in 20 + years encountered an issue like this with the sale
    of a property. We hired a real estate attorney and it will be heard directly with the TX real estate commission (or whatever itís called).

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