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Author Topic: New Property Deed Paperwork Question  (Read 901 times)
N3QT
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« on: August 05, 2002, 01:23:58 PM »

Hello Group:

If one is buying a new property and there is no HOA or CC&R at the time of purchase,  is there any sort of paperwork necessary to insure that any possible creation of one in the future won't force antennae to be taken down?

I would want it to state and hold something like the following:

(Please Excuse the Legal Speak'nease:)
"...owner of this property has the right to put up a 75 foot tower regardless of whatever B.S. happens in the future... so here written in the deed.  Go away. You don't have a legal leg to stand on"!!!

~~~
TKS ES 73, John DE N3QT

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WB2WIK
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« Reply #1 on: August 05, 2002, 01:29:45 PM »

CC&Rs cannot be added to a deed after the fact.

An HOA can always be formed by any group wishing to do so, but they'll have no ability to enforce phantom "deed restrictions" they might author.

Your right to a 75 foot (or any) tower might be regulated otherwise, however; you must check local zoning laws to determine what is, and what is not, permitted.  Unfortunately, that really can change, and often does.  There were no zoning laws at all 150 years ago, and look at what we have today -- on the same land.

WB2WIK/6
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KG4RUL
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« Reply #2 on: August 06, 2002, 03:37:29 AM »

The constitution has a provision that forbids 'ex-post facto' laws.  That simply means that after an act has occurred, which is legal at that time, you cannot pass a retroactive law making that act illegal.
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GRAYLINEDXING
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« Reply #3 on: August 09, 2002, 08:55:17 AM »

John, good ideas.  Also good not to listen to all the shade tree lawyers on Eham.  If a person posting here has a legal background, then they should say so.  My background includes real estate, and subdivision development.

First off, hope you have not made signed the contract to buy yet, or worst yet, have gone to closing.

Yes deeds can be amended.  If that was not true, then we would have no zoning laws, not tower restrictions, no C&R’s.  If that were true then all deeds would read as they did at the time of the Kings Grant, etc……..  Deeds are not re-written they are amended to, and added to.  A basic deed is very short, and simple.  One page.

First off you need to talk to two lawyers.  I understand everyone’s dislike for the legal system, but unless you know all the rules of the game ( the laws ) then how can you hope to even be in the game.  With any luck you may not have to spend a cent.  The first lawyer to speak to should be free.  The towns attorney, or the one who handles land cases for your city or county.  The other should be the closing attorney, if one is being used.  If the deal is using a closing agent, ask around a find out the name of a good real estate lawyer.  A good place to find one, of all places, is to go to a subdivision that has a full time association ( ie they have a full time office ), and ask WHO they use.  Most big HO, ( read that as well organized ) have good lawyers on retainer.  Why do you think they win, most of the time.

Any amendment to the deed might be done in two ways, and in your case I am not sure which way.  The obvious is to get the present owner to agree to the amendment, at the time of sale.  In other words the seller, conveys to you, the property, and upon the property the owner may place communications towers, and antennas for the purpose of amateur radio communication, that conform to local and federal standards.  A lawyer would do it better, but you get the idea.

Another way would be to amend the deed yourself, after you by the land.  I do not know if this is can be done, or is common.  Again ASK A PRO.  If you are lucky enough to have NO restrictions at all on the land, then it may be possible to amend your deed create something that is positive for you.  What you are doing is creating a public record.  YOU must have everything recorded at your town hall, or where ever deeds and public records are kept in your area.  IT MEANS nothing if it is not recorded.  Remember that you need to stay within the laws of the county.  Find out what they are now.  Include in any amendment, reference to federal laws, such as PRB-1

You did not say if this was subdivision, of just a lot off a road.  It sounds like subdivision, since you appear to be worried about a HO association.  As has all ready been pointed out, it would be hard for a HO to pick on your tower, in hindsight, BUT  THEY CAN TRY, and that will cost you money.  If you are buying from a developer, you can try to get him to amend your deed to allow antennas, but he may shy away for that.  I was looking at lots a year ago with the developer.  Nice sub, big lots 2 – 6 ac, and I had a copy of the C&R’s with me.  They covered a lot, but were not unreasonable, to keep the level of the sub nice and attractive.  I noticed that he really did not address the issues of antennas, towers, or structures.  I told him right up front what I wanted to do, and if I was interpreting the C&R’s correctly.  He had to admit that I could put up a tower, but that in his next subdivision he would address the issue in the C&R’s.  My advice is not to mention it to the developer, bank, builder, or real estate agent, if your property is as free as you say it is from restrictions.  If it is that clear cut, buy the property, ( lot, resale, builder, whatever ),  PUT up the tower and ANTENNA before even unpacking the coffee the maker, do it by the book ( zoning, building codes, permits, etc ).  Do it quick, fast, be quiet about it.  If the town says you need a physical Eng. to sign off on the project, fine one, maybe a local ham is one, or the ARRL, or radio club knows of one in your area, but do it by the book.  Do not give anyone a reason to find a weak spot in your armor ( tower installation ).  Once your tower is up correctly, it will be very hard for any HO to attack it, but they may try.  Do not give them any ammo.  If the subdivision is just starting, all the better.  If the majority of lots have not been sold yet, then as they are, those buyers will be aware that there is a tower structure in the area.  They know it was there when they purchased to lot/home, and had the choice not to buy if it bothered them.

One other source of information to you original question, is to contact your states real estate commission.  Every state has one.  Ask to speak with there legal advisers.  You will find it hard,  to speak to a real, real estate lawyer ( they don’t like speaking to the public ), ( but who is paying there fee for serving on the commission ?? ).  You May be able to get an answer to the amending of the deed from them.  If you have already talked about this with others involved in the purchase process, and have a real estate agent, ask them to arrange for you to speak to a RE Commission lawyer.  Also have the real estate lawyer provide you with copies of the last two deeds ( sales ) for that property.  Some subdivisions are a mix of several large tracks of land, form several owners.  Which deed controlled you lot.

Also “ex-post-facto” is a nice term, and a very important one in law, but it is not 100%.  If law were so simple, then why are law libraries so large ??  You also enter into the area of state laws, and federal laws, and who supercedes who.  On top of that, most lawyers really know very little about real estate law.  Real estate law is a mix of land laws of old England, and additions to those laws.  Real estate law is older than almost any other type of law in the country, and that can make it very confusing, but they are the laws that govern land use, etc…

John remember one rule.  Rule number One:  He who rules the gold, rules.  Meaning that a large HO can get together a bigger bank roll than the average property owner.  Unless you can afford to spend lots of money defending yourself, ( and you may be 110 % in the right ), it can cost you.

You are thinking along some very good lines and ideas.  My comments, unlike many, are not mint to be absolutes, your mileage many vary.  You have to do a lot of the leg work yourself.  Every real estate problem can be different, from state to state, and town to town.  If it were so simple, then tower case’s would be resolved 1,2,3.

Remember real estate agents should not give legal advice,  they should advice you on how to get a legal answer.  If you are buying from a developer’s represenitive , they know even less.  If you are buying from a private party, buyer beware.

Just to end on a happy note.  Hope you are buying cash ?? a mortgage company may refuse a loan, if they see something that might reduce the value of the property.  Remember in some states the lender holds the deed in total, till the note is paid.  In other words, it’s not your property till you pay for in full with good old green backs.  They ( the lender ) is worried about the deed.  They will review the deed before going to closing on the property.  Add something to the deed before closing and they may question it.  But I really think you can answer they concerns, with few problems.

You gave very few details to base an accurate reply to, so this is broad band.


Good luck in the contest.
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W9WHE
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« Reply #4 on: September 17, 2002, 12:42:15 PM »

Holy cow!

So much dis-information. Sheesh. Everybody has an opinion, but few seem to know what they are talking about.

1) The ex-post facto provisions of the constitution protect people from the GOVERNMENT, not people from private citizens.

Civics 101: The constitution does 2 things, a) sets out the STRUCTURE and POWERS the government, and b) grants PROTECTIONS (rights) to citizens from the government. Lesson #1: You have NO right to operate a ham radio (its not in the constitution) you have a privelege, which may be revoked, subject to minimal due process. Also, you have NO "right" to erect an antenna (again, its not in the constitution) unless your state has chosen to grant you that right via a specific law.

That's the government part. You, as a private citizen can buy a property wherein you NEVER bought the privelege of erecting an antenna if you buy a deed restricted or HOA property. The government does not protect you from yourself. If you buy a deed restricted property, you did so VOLUNTARALY. Any claim that you "didn't know" will not help you later.

FOR EXAMPLE:  You take title from the owner via the deed. If the deed is UNRESTRICTED, you get all the rights the previous owner had. So, the question becomes, what rights did the previous owner have?  If there is no HOA and no covenants and/or restrictions, then you are free of PRIVATE restrictions.

So, if the previous owner was restricted, he can't give you more than he had to begin with. You are stuck with whatever limitations the previous owner had. If the previous owner was BOTH unrestricted AND gave you ALL of his rights, then you are free of PRIVATE restrictions. You need a title search and a legal opinion to be sure.

Even if you are not deed or HOA restricted, you MAY still be subject to Government Zoning regulations.

If the previous UNRESTRICTED owner sold you ALL of his rights, he cannot later impose any restrictions, UNLESS he retained some right or YOU agree.

If you own UNRESTRICTED, no HOA property, and a totally voluntary HOA forms, you are not bound by their decisions absent YOUR consent. Be careful, as your voluntary act of joining MAY be constrewed as consent to its rules.

I sure wish you armchair lawyers would stop prommulgating false, misleading, confusing, jibberish.

Hire an attorney with lots of property expirence. IGNORE the rubbish you read which is authored by fools!
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W9WHE
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« Reply #5 on: September 17, 2002, 12:57:35 PM »

Moreover:

The seller of property CANNOT guarntee you the right to erect a tower. (read that line again) As said before, if the seller did not have the right (HOA or previous deed restriction) he cannot give you a right he doesn't have. If there is a Zoning restriction, the owners words in a deed will not help you avoid the government zoning restriction.

If the seller was not restricted, and the seller does not impose any restrictions AND he conveys ALL of his rights, then you get whatever he had.

Bottom line, make sure that someone, somewhere has not placed any restrictions on the land ie HOA or other restrictions. Make sure there is no zoning prohibition.

Ignore legal advice given by non-lawyers, ESPECIALLY if they are know-it-all hams.
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W9WHE
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« Reply #6 on: September 17, 2002, 01:06:15 PM »

Finally:

DEEDS ARE NOT AMENDED.

A deed is prepaired by the seller to reflect what is sold to the buyer then recorded in the clerk's office as a public record to prevent fraud. Generally, recorded deeds include a legal description of the property and any new legal restrictions placed on the property by the latest seller (but not allways). Sometimes they just refer to "easements and covenants of record". Such Restrictions may be recorded many transactions back in the chain of title and can effect your rights EVEN if not listed in your deed. That is why this is NOT a do-it-yourself project. A title search is essential, BEFORE you sign the contract for sale.

Yes, that's right, you DO need a property lawyer. Yes, it will cost you some money, but far less than litigation.

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KC4GL
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« Reply #7 on: October 16, 2002, 09:24:22 PM »

John,

Guess you are really confused by now.  Unfortunately, several of the replies to your post contain highly inaccurate information.  I am a real estate attorney.  The best advice ANYONE can give you is to discuss this matter with the real estate attorney handling your closing.  In the past, all states required a real estate attorney to conduct closings.  Now, due primarily to the lobbying of persons wishing to take bigger advantage of consumers, primarily banks and some title insurance companies, many states no longer require attorneys.

However, in every case, I recommend that you hire a real estate attorney to represent YOUR interests.  Real estate is a huge investment.  He or she will be able to give you absolute assurance that your tower project will (or will not) be allowable or restrictable.  He or she can also obtain title insurance (usually required by the bank anyway) to back up his opinion.  

I will be glad to discuss further if you need more details.  73 de KC4GL  
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KG4RUL
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« Reply #8 on: October 17, 2002, 07:32:59 PM »

All right!

So, can you 'real' lawyers answer this question?  Can a newly formed HOA impose restrictions on a property that previously had no restrictions?  That is the thrust of this thread!

Dennis - KG4RUL
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KC4GL
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« Reply #9 on: October 21, 2002, 05:38:53 PM »

Unless there is some common thread of development or deed restriction in the title history of the property, the answer is no, at least in North Carolina.  I am not aware of any state where the answer would be yes, YET.  We all need to support the bill in Congress so that the protections of PRB-1 will apply to such situations in the future.  Further questions, direct to glassiter2@earthlink.net.

73 de Glenn, KC4GL
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« Reply #10 on: May 31, 2003, 11:33:40 AM »

Finally, someone who knows what they are talking about puts the professional morons, who think they know the answer to every question about any subject in the universe, into their place of stupidity.  I love it.
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N2ERN
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« Reply #11 on: September 15, 2003, 08:12:40 AM »

It seems to me that if there is no HOA or restrictions when you buy, your neighbors  can form all the associations and write all the rules they want to.

You would have to JOIN the HOA to be bound by its rules.

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