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April, 2007
REAL ESTATE LAW UPDATE
Rentals Allowed Under
Restrictive Covenant
After a
couple bought property in a subdivision, they were surprised to learn
that several homes near theirs were going to be offered as vacation
rental property. Strangers on vacation were not the neighbors the couple
had in mind. All of the properties in the subdivision were subject to a
set of restrictive covenants, one of which required that lots be used
for “single‑family residential purposes only.” The couple sued to get a
court to declare that renting a home, even to one family, violated that
restriction, but the couple came out on the losing end of the
litigation.
In the
plaintiffs’ view, to derive rentals from a home was to convert the
property from single‑family residential use to a prohibited commercial
or business use. The court disagreed. Citing statistics showing that in
most states over 30% of homes are rented rather than owned by the
families living in them, the court reasoned that an owner’s receipt of
rental income does not detract from or change the “residential” use of
the property.
The
plaintiffs’ position was undercut by a separate covenant that permitted
delegation of certain owner rights to “tenants,” thus obviously
contemplating the rental of property. The plaintiffs argued that only
long‑term rentals were allowed, not short‑term vacation rentals, but
they could point to no language supporting such a distinction.
Seller’s Duty to Disclose
Before
building a home on property it owned, a developer obtained a study of
the soil conditions in the area that included the lot for the home. The
study was prompted by the fact that a church that formerly owned
adjoining land had abandoned plans to build a church structure on that
land because of its own study indicating that there was too much
collapsible soil to support the building. After receiving the soil study
of the neighboring land, the developer dug out some soil on the lot for
the home, reducing its grade by about six feet, and built the new house.
That there
were any concerns over soil suitability came as news to the buyers of
the new home when, not long after the purchase, cracks appeared in the
foundation, doors would not open or close, and, as the court later put
it, “[e]vidence of excessive settling abounded.”
The developer
had not disclosed the contents of the soil study to the buyers. A state
supreme court ruled that the buyers’ lawsuit for fraud should go to a
jury. The court reasoned that a developer/builder may owe his buyer a
duty to disclose information known to him concerning real property,
including property not being conveyed to the buyer, when that
information is material to the condition of the property being
purchased. To be material, the information must be “important.”
Importance, in turn, is measured by the degree to which the information
could be expected to influence the judgment of a person buying property.
In the case
before it, the court found that a jury could well conclude that the
buyers would have wanted to know about collapsible soil on adjacent land
before they bought their home. In the court’s view, a property boundary
should not be considered a perimeter outside of which, as a matter of
law, nothing is material to a prospective buyer.
All legal articles in this site
are general and informative. The articles or any other information on this
site is not legal advice nor is any information warranted or guaranteed.
Laws change over time and in different localities and jurisdictions laws may
be different from any laws mentioned on this site. It is advisable that you
consult an attorney and or an accountant in the area where your business
will be located.
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All legal articles in this site
are general and informative. The articles or any other information on this
site is not legal advice nor is any information warranted or guaranteed.
Laws change over time and in different localities and jurisdictions laws may
be different from any laws mentioned on this site. It is advisable that you
consult a attorney and or an accountant in the area where your business
will be located.
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Elias
Stassinos, Esquire
is a trademark and
incorporation attorney that has
helped thousands of small
business owners and entrepreneurs
launch their first business
enterprise. He's also an
entrepreneur who operates several
successful businesses not related to
his law practice.
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Copyright
© E. Stassinos, Esq. 2005. All Rights Reserved.
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