Again and again we see clashes between homeowners and homeowner associations over enforcement of rules, regulations and restrictions over matters such as backyard sheds, fences, roof color, and even cars parked in driveways.
The typical homeowner outcry in response can be “this is ridiculous,” “it’s my property and I’ll do what I want with it,” “I didn’t know anything about this,” and “my Realtor/my neighbor/the person that sold me the house said this would be OK.”
Legally, however, the true answer lies in the minutia buried within the pile of paperwork one receives in the process of buying a home.
Specifically, the title commitment and the title insurance policy issued by the title company constitute commonly overlooked documents in the home purchase process.
Show of hands please of who carefully reviewed these materials at any time in the process.
This is understandable, because to the untrained eye, the title work constitutes perhaps the most undecipherable gobbledygook in the mountain of paperwork assimilated in the transaction.
And when people contact me about these types of issues, and I ask them to bring me their title insurance documents to review, the common response is: “What’s that got to do with anything? The Realtor said I could do this.”
My response: “It may have a lot to do with it. Bring it in and I’ll show you.”
Typically, in real estate sales, the seller is required to deliver to the buyer a title commitment within a short time after the contract is signed, which the buyer is entitled to review for a set period of time, and notify the seller of any objections it has to the status of the title, which can be a means to cancel the sales contract if an irreconcilable and unacceptable (to the buyer) issue exists with the title to the property.
Every title commitment and policy will include a list of exceptions, matters on file with the recorder of deeds that can affect the buyer, and their use and enjoyment of the property.
This list of exceptions will typically include easements for the various utility companies to encroach upon the property to install, maintain and service utility infrastructure as may be necessary from time to time. This is typical and necessary.
It may include liens and assessments against the property for matters such as unpaid taxes, special assessments, and mechanics liens for unpaid work on the property. This is important, and should be reviewed and observed with care.
Also something very important to review and consider on the list of exceptions is the covenants and restrictions of record that cover the property. These should be listed, by document number on file at the recorder’s office. They are a public record, that in Jackson County can be accessed, reviewed, and printed out online. And, they constitute, in essence, a binding and enforceable contract with every party that takes title to property covered by them, regardless of what their Realtor, seller, or new neighbor may tell them.
Covenants and restrictions may include such binding requirements as payment of dues on an annual basis to cover common costs in a subdivision; the establishment of a committee to review and approve any proposed changes or improvements to the property; building standards for new homes to be built in the subdivision; and restrictions on the use and condition of homes in the neighborhood, such as roof color, outbuildings, fencing, above ground swimming pools, size and number of pets and a whole host of issues that bind owners of the property, purportedly for the benefit of all property owners.
These covenants and restrictions may be enforced in a court of law, with injunctions and cease and desist orders.
And so, while one homeowner may think it ridiculous that the association can tell him what color his new roof can be, that same homeowner may want to prevent his neighbor from putting a chicken coop, dog breeding pen, or mechanics garage in the backyard next door.
The bottom line is, before you buy, it is always a good idea to review the title work, the exceptions, and the covenants and restrictions in a timely fashion, before closing. Because those matters are as much as a part of the contract you are entering into as the one you sign with your realtor.
-- Ken Garten is a Blue Springs attorney. Email him at firstname.lastname@example.org