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  1. #1
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    Default Deed Language

    My question involves real estate located in the State of: Ohio

    I have a series of deed language questions. Because I typed it all up yesterday and for whatever reason it did not post, I'll start with the shortest one.

    First one is the meaning of: "not excepting" Used in a sentence "No buildings, not excepting a boat house, permitted on premises." This is a restrictive Covenant in a quit claim deed in our chain of title for a lake front parcel of land. We assume that it excludes all building, but wonder if it was meant in exclude everything except a boathouse.

  2. #2
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    Default Re: Deed Language

    "No buildings, not excepting a boat house, permitted on premises."

    If the intent was to allow only a boat house on the lake front then it should have read:

    "No buildings, excepting a boat house, permitted on premises."

    That way a boat house would be permitted as an exception to "no buildings."

    "not excepting a boat house" means (to me) that there is no exception for a boat house (read literally) which, of course, doesn't make sense.

    I suggest you check the county recorder for the deeds to neighboring lake front properties and see how they are written.

    As to the quit claim deed, from who to whom is it written? And have you looked up prior deeds to see how they are written?

    Did you buy an owner's title insurance policy when you bought or acquired the property?

  3. #3
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    Default Re: Deed Language

    Thanks jack, yeah, we researched much of the chain ourselves and finally ordered the full chain of title to fill a gap between 1931 and 1963 where the recorder's records were difficult to follow.

    Most of the other similar lakefront lots are worded the same, they were all written and sold by the same land company. We, as others have, were assuming the Not Excepting phrase meant no buildings. In 88 years there have been no buildings on this lot or 7 or 8 other similarly deeded lakefront lots.

    When I put the not excepting question to my daughter, a history PHD candidate with a language major she wasn't sure if it meant to exclude or include boat houses [and bath houses actually]. She suggested that someone with more legal background might know better.

    My next part of the inquiry leads me to how the land has been encumbered by the 1931 deed and how it has actually been used.

    The lot is a lakefront lot is about 200 feet deep with about 50 feet of frontage on a 300-400 acre lake. This lot is one of several empty unbuildable lakefront lots across the road from a housing allotment. Most lake front lots are owned by homeowners across the road. Until recently most homes were older rather modest summer cottages.

    One of the owners, the complainer, removed several cottages and build a large "million dollar" home across from our lakefront lot, He also owns a similarly situated and similarly deeded lakefront lot. This complainer now claims that laying down the docks on the land over the winter violates another of the 1931 deed's restrictions. Keep in mind there is a long history of laying the docks down on this group of lots as we have since we bought it in 2017. The complainer even wintered a floating jet ski dock last winter on his lot.

    The same 1931 deed paragraph saying "No buildings..." says further down that, "This limitation shall not apply to... ...a retaining wall [on the shoreline] and the building of a suitable and proper pier..."

    For the last 88 years there has been a dock on this lot of one form or another. In the winter the docks have been pulled out of the water and stored on the lot. Much the same has occurred on the lots north and south of this particular lot. That evidence is clear.

    The paragraph that he claims we are violating, exactly as written in 1931 deed:

    "The Grantor [note that it doesn't say Grantee] herewith agrees to maintain the premises in a clean, orderly condition and to endeavor to improve the appearance and beautify the same and no weeds, underbrush or other unsightly "*" [penciled in] objects shall be allowed to be placed or suffered to remain anywhere thereon "*" [penciled in] growths shall be permitted to grow or remain anywhere on said premises and no "unsightly" [penciled vertically in margin]

    Our research disclosed that two other similar deeds say "Grantor herein agrees...", several others say "Grantee" and several had the same word jumble errors between the penciled in notations. There is no indication when the penciled in notation and word "unsightly" were added to the official record.

    My legal defenses at this moment would be:

    The 1931 Deed permits the placement of docks [piers] on the property and it is not clear that they didn't contemplate wintering them on land (as they have since).

    "Unsightly" is a subjective term, we are a "middle class" boating lake and things associated with boating shouldn't be considered unsightly.

    Laches, The complainer could have complained of the use long ago and did not. He in fact, used his lot just as we are using it now. In fact, several of the dock sections we own today came from his dock that he abandoned several years ago.

    Waiver, acquiescence and abandonment, Complainant and other similarly situated land owners and each of their predecessors have used their lots how we are using our for at least the last 88 years.

    Confusing and indefinite legal construction [whatever that legal term might be]
    would these errors act to nullify or void that section?

    Our chief concern is that if we ever removed the docks (we are one of two lots this complainer hasn't got to yet) the village zoning department could put a zoning resolution in place restricting such future use. If the docks stay in place over the winter they would be a grandfathered in use if zoning acted as we suspect they might. One other owner still storing his docks on his lot has trees screening much of the materials. I suppose we could plant trees to screen off the sight of the docks, but we feel that would just block the complainer's view of the lake.

  4. #4
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    Default Re: Deed Language

    When you say "complainer" or "complainant" do you mean he has filed suit and served people with a summons and complaint? Or do you mean a whiner, a gasbag, a hot air blower, etc?

  5. #5
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    Default Re: Deed Language

    Whiner, he acts like he might file suit.

    Do you feel we might have a good defense?

  6. #6
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    Default Re: Deed Language

    Quote Quoting buzzards27
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    Our chief concern is that if we ever removed the docks (we are one of two lots this complainer hasn't got to yet) the village zoning department could put a zoning resolution in place restricting such future use. If the docks stay in place over the winter they would be a grandfathered in use if zoning acted as we suspect they might. One other owner still storing his docks on his lot has trees screening much of the materials. I suppose we could plant trees to screen off the sight of the docks, but we feel that would just block the complainer's view of the lake.
    I wouldn't worry about the zoning department (the zoning board or planning board) placing restrictions on pulling the docks up on land due to some deed misinterpretations. They don't deal in deed interpretations. They zone for health, safety, and welfare of the community. How in your mind does the planning board (and ultimately the council) pass a zoning ordinance that docks can't be brought on land in the winter months?

    This would be a civil matter if your neighbor wants to sue. And then there are a whole of legal doctrines come into play such as easement law for prior use and many more.

  7. #7
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    Default Re: Deed Language

    Quote Quoting buzzards27
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    Whiner, he acts like he might file suit.

    Do you feel we might have a good defense? The 1931 Deed permits the placement of docks [piers] on the property and it is not clear that they didn't contemplate wintering them on land (as they have since).
    Assuming you mean defense against an allegation of non-compliance with the deed restrictions (if you can ever figure out what they are):

    "Unsightly" is a subjective term, we are a "middle class" boating lake and things associated with boating shouldn't be considered unsightly.
    True, but even a boat dock can be crappy looking.

    Laches, The complainer could have complained of the use long ago and did not. He in fact, used his lot just as we are using it now. In fact, several of the dock sections we own today came from his dock that he abandoned several years ago.
    I don't think laches applies. You haven't actually done anything for which you can be sued. For example: You have a dock, it's in the water, you take it out of the water and put it on your lot, he sues you for not complying with the deed restrictions. That suit is filed timely and laches doesn't apply.

    Even if he did sue you for something in the distant past, the delay would have to somehow prejudice you. In other words, put you in a worse position today than if he would have sued you earlier. Since you've only owned the property for two years I don't see why two years would make any difference.

    Waiver, acquiescence and abandonment, Complainant and other similarly situated land owners and each of their predecessors have used their lots how we are using our for at least the last 88 years.
    Bingo. That's your best shot. Coincidentally, I know something about that because I'd been looking for a property for almost a year that had enough room in the back yard to put up a large garage for my car hobby. I had to eliminate many prospects because of deed restrictions on garage size. While that was happening I was reading appellate case decisions that ruled that non-conforming use by a percentage of owners could render the subdivision sufficiently changed so that a particular deed restriction could no longer be enforceable. Those cases were in Arizona but your own state might have similar decisions. Go to google scholar, choose your state civil courts and use parameters "deed restrictions."

    Confusing and indefinite legal construction [whatever that legal term might be]
    Also possible. If even a judge can't figure it out he would have to figure out the intent of the grantor.

    would these errors act to nullify or void that section?
    No, they just provide a defense to it. The next person to be sued would have to raise his defenses all over again.

    Which brings me to one more potential defense. The deed restrictions that I reviewed this past year had in common a provision allowing any owner to sue any other owner for non-compliance with the deed restrictions. If that is absent from yours, he would not have standing to sue for non-compliance with the deed restrictions. He would have to sue for private nuisance meaning he would have to prove that what you are doing affects his enjoyment of his property. That's a lot bigger burden of proof than just a violation of deed restrictions.

  8. #8
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    Default Re: Deed Language

    Quote Quoting budwad
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    I wouldn't worry about the zoning department (the zoning board or planning board) placing restrictions on pulling the docks up on land due to some deed misinterpretations. They don't deal in deed interpretations. They zone for health, safety, and welfare of the community. How in your mind does the planning board (and ultimately the council) pass a zoning ordinance that docks can't be brought on land in the winter months?

    This would be a civil matter if your neighbor wants to sue. And then there are a whole of legal doctrines come into play such as easement law for prior use and many more.
    We have seen this village zoning department act very strange at times. 'oh, that's grandfathered in' is their rational for uneven enforcement all the time. We're assuming they'll pass a resolution outlawing docks on the land the second we moved them elsewhere. We've been here 5 years and watched the progression of landowners move their docks off the lakefront. Most of those have one, two or three boats on them. Our dock has 10 to 12 boats on it, all from the immediate neighborhood. It is a much larger dock and there is a large mass on material.

    Quote Quoting adjusterjack
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    Assuming you mean defense against an allegation of non-compliance with the deed restrictions (if you can ever figure out what they are):



    True, but even a boat dock can be crappy looking.



    I don't think laches applies. You haven't actually done anything for which you can be sued. For example: You have a dock, it's in the water, you take it out of the water and put it on your lot, he sues you for not complying with the deed restrictions. That suit is filed timely and laches doesn't apply.

    Even if he did sue you for something in the distant past, the delay would have to somehow prejudice you. In other words, put you in a worse position today than if he would have sued you earlier. Since you've only owned the property for two years I don't see why two years would make any difference.



    Bingo. That's your best shot. Coincidentally, I know something about that because I'd been looking for a property for almost a year that had enough room in the back yard to put up a large garage for my car hobby. I had to eliminate many prospects because of deed restrictions on garage size. While that was happening I was reading appellate case decisions that ruled that non-conforming use by a percentage of owners could render the subdivision sufficiently changed so that a particular deed restriction could no longer be enforceable. Those cases were in Arizona but your own state might have similar decisions. Go to google scholar, choose your state civil courts and use parameters "deed restrictions."



    Also possible. If even a judge can't figure it out he would have to figure out the intent of the grantor.



    No, they just provide a defense to it. The next person to be sued would have to raise his defenses all over again.

    Which brings me to one more potential defense. The deed restrictions that I reviewed this past year had in common a provision allowing any owner to sue any other owner for non-compliance with the deed restrictions. If that is absent from yours, he would not have standing to sue for non-compliance with the deed restrictions. He would have to sue for private nuisance meaning he would have to prove that what you are doing affects his enjoyment of his property. That's a lot bigger burden of proof than just a violation of deed restrictions.
    Thanks for your reply and the tip of Google Scholar. My daughter has access to Westlaw if that is better or worse than Google Scholar???

    I'm just starting to gather possible defenses, we received a demand letter about 10 days ago, just a few days before we pulled the docks for the season. Unsure where this is going. The convoluted language of the deed doesn't help us in figuring our next move. Our Dock is a neighbor dock for working class boaters, some retired, some still working. The thing we have going for us is widespread neighborhood support (since we bought the lot we have welcomed all neighbors up to the waters edge to enjoy it like a park) and next season we are adding a retired attorney that just moved in town.

    Sadly, we're looking at gentrification as smaller cottages slowly get torn down and McMasions replace them. The new people don't care how the lake used to be used. They want their unobstructed vista and historic usage be damned.

  9. #9
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    Default Re: Deed Language

    Quote Quoting buzzards27
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    we received a demand letter about 10 days ago,
    What does it say? Can you quote it word for word? Was it written by the gasbag whiner or by a lawyer?

    Quote Quoting buzzards27
    View Post
    Unsure where this is going.
    You'll have to wait and see. Quite often people blow hot air in demand letters but when it comes to actually shelling out money for a lawsuit they sometimes balk. That even goes for people with deep pockets. People with lots of money are often very careful how they spend it.

    Quote Quoting buzzards27
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    The thing we have going for us is widespread neighborhood support (since we bought the lot we have welcomed all neighbors up to the waters edge to enjoy it like a park) and next season we are adding a retired attorney that just moved in town.
    I hope that widespread neighborhood support translates to money. The more people that contribute to a legal defense fund, the less each has to pony up. And maybe the retired attorney still has his Bar card.

  10. #10
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    Default Re: Deed Language

    Quote Quoting buzzards27
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    My question involves real estate located in the State of: Ohio

    I have a series of deed language questions. Because I typed it all up yesterday and for whatever reason it did not post, I'll start with the shortest one.

    First one is the meaning of: "not excepting" Used in a sentence "No buildings, not excepting a boat house, permitted on premises." This is a restrictive Covenant in a quit claim deed in our chain of title for a lake front parcel of land. We assume that it excludes all building, but wonder if it was meant in exclude everything except a boathouse.
    A boat house is not customarily built on land. It is built on the water with a foundation in the lake bottom. Therefore, the restrictive language is to not permit a boathouse being built beyond your property line in the lake. What this has to do with your later questions about docks is a bit confusing.



    Quote Quoting buzzards27
    View Post
    We have seen this village zoning department act very strange at times. 'oh, that's grandfathered in' is their rational for uneven enforcement all the time. We're assuming they'll pass a resolution outlawing docks on the land the second we moved them elsewhere. We've been here 5 years and watched the progression of landowners move their docks off the lakefront. Most of those have one, two or three boats on them. Our dock has 10 to 12 boats on it, all from the immediate neighborhood. It is a much larger dock and there is a large mass on material.
    Without knowing any specific facts about the zoning board claiming that some non-conforming use was grandfathered, it's hard to comment. But you should understand that when a zoning board rules on applications, any use that pre-existed a zoning change is grandfathered (not all) until that use is abandoned or changed to a conforming use. So there may well be situations where there is legitimate grandfathered uses.

    What the zoning board can't do is spot zone. They can't single out someone or a property or group of properties without it conforming to the municipal master plan. I don't see your storage of docks on the lake front during winter as being something that the board would try to control. But since you and other property owners have been doing it, it becomes a question of prior non-conforming use if there was to be a new zoning ordinance preventing it. To be clear, the zoning board does not pass or adopt ordinances. They apply the ordinances that are already passed. It is your municipal or city council that passes the ordinances.

    I think you are over thinking this. If your neighbor wants to sue deal with it when it happens. It would be an expensive lawsuit to prosecute. And for what? Docks covered in snow?

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