Deed Restriction Question

[W8JX]

Many times, lawyers will create more problems than they cure. However, they will always separate you from your money!  

I have never had that problem. When dealing with grey areas of deeds, you need a legal standing. Failure to do so could be expensive.

Actually zoning restrictions are easier to overcome and waive but Deed restrictions are more absolute generally and cannot be changed without consent of those befitting from them and even then it takes a court action.

[KI4SDY]

A lawyer cannot provide you with legal standing. He can only provide you with a legal argument and a bill! Only a court of law can provide you with legal standing. You have "never had that problem" because you probably have never had to confront it. Hopefully, in the future you will not have to deal with any lawyers. I guarantee that you will not like it.  

[W8JX]

A lawyer cannot provide you with legal standing. He can only provide you with a legal argument and a bill! Only a court can provide you with legal standing. You have "never had that problem" because you probably have never had to confront it. Hopefully, in the future you will not have to deal with any lawyers. I guarantee that you will not like it.  

This is mostly true but his opinion can be based on previous legal precedents or "standings" that have all ready be established. It is better to find one and know where you are at rather than being a bull in a china shop and hoping for the best. You are more likely to find a "bad lawyer when backed into a corner and need one in a hurry if you do not take the time to find a good one before the storm.

Also I would not be so bold to suggest what legal issues or services I have needed or used in my life related to real estate, personal or business life because you are truly clueless here. I have used a lot of legal services and even have a few friends that are lawyers so I know a lot more about it than most. At one time I even considered a career in it.

[KI4SDY]

Great! Give us the case or permit number and venue information that you had to enlist a lawyer for, that is relative to this issue. I would love to research it and see how a legally savvy person handles these problems.   

I considered being a brain surgeon, but I need volunteers to practise on!    

[KE4YOG]

Well unless I understand law less that I thought an attorney can tell you if you have legal standing. You may go in and say you want to sue the school system for damages that happed to your best friends little girl. He would look at you and say we have no standing. He would be using precedent, case law, etc to determine that. While a court is the body that has settled the idea of legal standing aa half way decent attorney knows if case law will apply to your situation. If he does not know then he will let you know.
     BTW the fun in only begins once you get to Federal Court. What to see your name being sued in Federal Court for violating a persons civil right. This is not fun. I know. I am expecting a subpeana from Federal court dealing with a training issue. I am not worrued because I taught by policy but still it gets the nerves kicked up a little.
    

[KI4SDY]

A lawyer is only giving you his opinion after researching applicable case law and trying to apply it to your situation. He could be wrong. The politics of the situation could be against you. Your witnesses may not show up. You could get a bad judge. The judicial system (notice I did not say justice system) is a crap shoot at best. You should run from any lawyer that guarantees an outcome of your case, which includes telling you that your case has legal standing! He cannot give you legal standing. He has no authority to do that. Only a court of law can do that. I think your confused by the definitions because someone is trying to rationalize his original argument, after realizing he was wrong.

So why did you jump the fence from recommending stealth operation to using lawyers? That is quite a leap!

[K1DA]

There are lawyers in every state, with ham radio experience, who are only to happy to advise a fellow ham, without charge, as to whether or not proceeding with an antenna project is going to cause costly legal problems.  The ARRL can help you find one.  Personally, I have never charged another ham for providing such advice.  In one case, the ham who contacted me was very concerned that he would be denied a building permit for his tower.  I suggested that he had to start by applying for the permit.  Turned out the building inspector was a ham himself.  NO legal services needed.  The building inspector even  helped him install it. 

[KI4SDY]

As per my previous post, the politics of the situation were with him. He was very lucky. As a lawyer, you should know that sometimes the politics of the situation work in the opposite direction. No matter how legally right you are, you will not prevail or the government will bury you with so many requirements and high fees, that proceeding is not practical. We have seen it documented on eHam.net repeatedly.  

W9MN just reported on a similar string, in the "Antenna Restrictions" section, that he is not having much luck with the ARRL lawyer location service you mentioned. All he got was two weeks of e-mails saying a lawyer would contact him within 24 to 48 hours. As far as we know, he is still waiting. I bet if he had offered a $10,000 retainer, they would be beating down his door!  

Let us know when all this free ham legal assistance comes to Florida. We need it badly down here!  

[K5ML]

I was wondering, I have obtained a copy of the deed restrictions for my property. When looking at homes in the past they all stated "No Ham Radio Antennas" this one does not. City zoning says they have no problem with towers or antennas. However, the deed does say no TV antennas. Will that somehow cover Ham antennas? Our will I be ok? There isn't a HOA in place either....not sure if that matters.

Thanks in advance

Steve / NZ4Z

Steve,
If your community deed restrictions prevent TV antennas, they are in violation of the FCC OTARD Rule that limits/prevents prohibiting the installation of TV and other types of antennas via community restrictions. Inasmuch as your deed restrictions on TV antennas is invalid and they say nothing in the restrictions about amateur radio antennas, I fail to see how they can legally challenge your putting up an antenna. A CC&R is merely a contract that a homeowner and the community voluntarily agree to abide by. If you didn't sign an agreement agreeing to not put up an antenna (other than a TV antenna), I see nothing that can legally stop you. For the record, I am not an attorney and I suggest you run this by one that specializes in HOA disputes. The ARRL Volunteer Counsel in your district may be able to refer you to one or advise you on this particular issue.

You state there is no HOA where you live. Count your blessings. My guess is that you are in great shape.

You can read more about the FCC OTARD Rule here: http://www.fcc.gov/guides/over-air-reception-devices-rule

Good luck & 73,
Mickey, K5ML

[AC4RD]

You know reading through this thread only one ham gave the right answer and that was W3WN when he said "consult a real estate attorney". 

I've got to agree on this.  Yes, an attorney can only give you an opinion, as others have said.  But the opinion of a trained and experienced professional, one familiar with local regulations and precedent, is VASTLY more likely to be useful to you than solicited comments on an internet forum from people who may or may not know what they're talking about.

That being said, if I were in your case, I'd probably put up my regular wire doublet fed with window line, and assume there won't be any significant obstacles to using it.

One other thing that I've been doing for 20+ years now:  when I'm going to be active on HF after a layoff, or if a new neighbor arrives, I'll tell the neighbor(s): "I've got a shortwave antenna in the yard, and I'm going to be using the radio.   Here is my cellphone number, please call me if you have any interference or problems."  That has worked very well for me over the years.  I'm in favor of having friendly cooperative relationships with my neighbors.

[W0MT]

"A CC&R is merely a contract that a homeowner and the community voluntarily agree to abide by. If you didn't sign an agreement agreeing to not put up an antenna (other than a TV antenna), I see nothing that can legally stop you."

CC&Rs are said to "run with the land." That means if you merely own the land, you are LEGALLY bound by the CC&Rs. In many jurisdictions, when you buy land you must be furnished a copy of CC&Rs. However, you are not required to agree to them--you buy the land and you are bound by the restrictions. And there are instances where you don't have to be furnished a copy. For example, if your favorite uncle dies and wills his land to you, the instant you become the owner, you are bound by any CC&Rs.

If you buy land with CC&Rs in a jurisdiction that requires them to be furnished before purchase and you were never furnished a copy and you complete the purchase, it is doubtful you could somehow void the sale. Your only likely remedy would be a lawsuit against whoever had the duty to furnish you a copy. Even the would be difficult as you would need to prove monetary damages. Given that you can't make money with Ham radio, you might be out of luck. And of course you would still be subject to the CC&Rs.

[KI4SDY]

In short, go stealth! 

[W6EM]

You can read more about the FCC OTARD Rule here: http://www.fcc.gov/guides/over-air-reception-devices-rule

Good luck & 73,
Mickey, K5ML

Or, you can read the entire rule, at 47CFR 1.4000.  It only protects TV antennas and subscription satellite TV dishes of one meter diameter or smaller.  It specifically excludes all other antennas from its protection including amateur radio and CB antennas.

It even goes so far as permitting HOAs to restrict protected antenna locations for aesthetic reasons, but being able to receive a satisfactory signal level is the bottom line.

With some degree of luck and skill, ARRL's amateur radio "study" language recently passed by Congress will encourage legislation to protect amateur radio antennas from outright ban by CC&Rs.  Similar to what the OTARD rule does for TV and satellite antennas.  Stay tuned for more in the coming months as ARRL will participate in the study.