Review your Deed Before you Build (Tue Tip)

(Or, Reason # 529 why you need a lawyer)

A recent North Carolina case shows why you really need to consult with a lawyer before you build.  Deed of TrustIn the swanky Myers Park section of Charlotte, setback requirements were contained within property deeds, a hold over from the pre-zoning days of the early 20th century.   A $500,000 addition to a residence was built that violated the setback, and the Court of Appeals held that the neighbors were not enjoined from suing to force compliance even though they waited over two months (during which construction was substantially completed) to bring suit.

 The case is Irby v. Freese.  Of note, the homeowners built the addition without benefit of an attorney or architect, so the deed restriction was not noticed.

The Court of Appeals was only addressing the issue of undue delay in bringing the lawsuit, because a two month delay occurred during which significant sums were spent by the homeowners to dry in the building.  The Court held that, under the specific facts of the case, a two month delay was not fatal to the claim.  Stay tuned for further details, as the case is far from over.  It has been remanded to the trial court for a full trial.

And, be glad that this isn’t you.  This could prove to be a very costly mistake, in which the entire addition may have to be demolished because of the violation of the setback requirement contained in the property deed.

Read your deed.  Read your covenants. When in doubt, hire real estate counsel before you pick up the shovel.


Photo “February 5, 2010- Paperwork” via Caitlin Childs via Flickr- Creative Commons license.

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