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Court Case 121
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Court Case 121
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Last modified
10/12/2021 3:01:30 PM
Creation date
1/20/2020 11:59:36 AM
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Medical Examiner
Document Date
1/20/2020
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2. <br /> covenants in question are unenforceable for two individually sufficient reasons. <br /> A. These restrictive covenants are not enforceable against defendants be- <br /> cause they are only referred to in the "warranty" portion of the deed to the land. <br /> The courts have ruled that mention of restrictive covenants only in the "warranty" <br /> is not a sufficient contractual basis to render such covenants binding upon the <br /> purchaser. <br /> B. The restrictive covenant allegedly violated here is vague and ambiguous. <br /> The courts have resolved all such ambiguities in favor of the free and unrestricted <br /> use of land. Ambiguity in the covenants as to the terms "camping equipment" and <br /> "in use" renders this covenant unenforceable. <br /> Before discussing these two assertions, however, it is important to note <br /> that the deficiencies in the restrictive covenants which are the subject of this <br /> argument render the covenants unenforceable regardless of who seeks to enforce <br /> them. It is of no significance whether the plaintiff in this action is Voyager <br /> Village or the Property Owners Association because the covenants are defective <br /> and never were enforceable against the defendants, and thus do not run with the land. <br /> Defendants' first contention (A.) is that the restrictive covenants are <br /> unenforceable because they are only referred to in the "warranty" portion of <br /> defendants' deeds and do not receive further mention in the deed. Section 6 of <br /> plaintiff's complaint states: "That the deed of conveyance to Robert Schwinghammer <br /> and Theresa Schwinghammer, his wife, specifically excepted from its warranty re- <br /> corded covenants and restrictions of record and thereby put the defendants on <br /> notice in regard to the covenants and restrictions noted above." Defendant contends <br /> that a warranty in a deed only serves to assure purchasers of property that owner- <br /> ship of the property is unchallenged, and for the protection of the purchaser re- <br /> quires the seller to defend against claims contesting the clear deed. Such a <br /> warranty provision does not seek to establish the terms of the conveyance or rights <br /> as to the use of the property conveyed. Black's Law Dictionary defines a "warranty" <br /> as: "A real covenant by the grantor of lands for himself and his heirs, to warrant <br /> and defend the title and possession of the estate granted, to the grantee and <br /> his heirs, to warrant and defend the title and possession of the estate granted, <br /> to the grantee and his heirs, whereby, either upon voucher . . . and the eviction <br /> of the grantee by paramount title, the grantor was bound to recompense him with <br /> lands of equal value." <br /> The courts have uniformly held that mention of restrictive covenants only in <br /> this "warranty" to the deed is insufficient to impose these restrictive covenants <br /> upon the purchaser of the land. In Keith v. Seymour, 335 SW2d 862, Tex Civ. App. <br /> (1960) , where one of the deeds in question, made no mention of building restrictions <br /> except by its general warranty clause (the grantor warranted to defend the title <br /> (except as against the reservations, restrictions, covenants and conditions of <br /> record applicable to this property as part of the Live Oaks Addition,") it was <br /> held that the language just quoted did not impose building restrictions on the <br /> property "since a covenant of warranty is not part of the conveyance and does not <br /> strengthen, enlarge, or limit the title conveyed." The court in Smith v. Second <br /> Church of Christ Scientist, 87 Ariz. 400, 351 P2d 1104, 84 ALR2d 716 reached the <br />
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