Asheville, NC asked in Real Estate Law for North Carolina

Q: I have a question re deed restrictions

Looking to buy property with deed restrictions. Owner illegally built a second home. The deed restrictions only allow for one home. His realtor states that the home has been on the property for 6 years and there has been no complaints from the other residents of the subdivision so this house will be grandfathered in. Is this true? The deed restrictions also state that there can be no commercial property, does this mean it cannot be rented?

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1 Lawyer Answer
  • Cary, NC
  • Licensed in North Carolina

A: I don't know. Any attorney would need to see the deed. And the test is not whether anyone else complained.

Were these restrictions in other deeds of surrounding lots? And how can the violation be "grandfathered" in? There is no such thing. Grandfathering occurs where a use was permissible at the time but something happened to make it illegal or not allowed. Examples may be setback requirements or a septic system - if the house was built in 1832 before requirements for this the municipality may grandfather any such structures that were built before the ordinance took effect and allow them to remain even though they violate the ordinance.

In your case, the second home would be grandfathered only if it was built before the restrictions took effect. So did the previous owner buy the property with existing restrictions? Or is he trying to sell the property to you and now make restrictions?

Nobody is going to want to buy a potential lawsuit here and my advice would be to get a real estate litigation lawyer now. This second house may be a violation.

No commercial property does not mean necessarily that the second home cannot be rented. Rentals can be residential property. Commercial refers to having a business - like a warehouse or store or industrial plant. Commercial implies activity in a business with increased traffic and/or some other nuisance, like noise or air, water, ground pollution. Renting out the property to another family is residential.

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