Q: Under contract to buy a property in Virginia. The property has deed restrictions. Can I forfeit earnest money to get out
The seller did not disclose the restrictions on the property prior to the title search being completed. The deed restrictions were filed in 2019 and will last 40 years minimum with options to renew. The deed restrictions require any modifications to the property and land to be approved, by a trustee located in Colorado such as the number of bedrooms, sheds, or fences. The seller purchased the land in 2021 but did not provide this information to me. I wanted to make 3 bedroom home into 5 bedroom using the basement, but these deed restrictions will not allow it.
A seller's and purchaser's contractual rights under a written sales agreement depend on the provisions contained in the writing. There are causes of action outside the contract, that led to the formation of the agreement, including fraud and duress. A contract may be voided as unconscionable if it is so unfair as to shock the conscience of the court, and no reasonable person would have entered into it. Both parties to a valid contract must perform the contract according to their duties. A material breach by either party relieves the other party of its duty of performance. As real estate is unique, a case for specific performance - forcing the other party to perform by court order - may exist.
Land records are open to the public. Anyone can go the appropriate Virginia Circuit Court and examine the records pertaining to a particular plot of real property. Similarly, there are zoning records and other records affecting real property that are open to the public.
The general rule in contracting is buyer beware. A prudent buyer does his or her own due diligence before signing a contract. This could include checking all the public records, including land records and records describing the legal uses of the property.
Most real estate sales involve financing and title insurance. A title search is one of the requirements for title insurance. Some, but not all, purchasers buy an owner's title insurance policy. The title search in these transactions is primarily for the benefit of the insurer, not the parties to the transaction. A purchaser should not solely rely on the title search for insurance, but also on prior written representations of the seller and the warranties in the deed.
Anyone facing a real estate contract dispute should consult with an experienced Virginia real estate lawyer.
A: It is a bit unclear as to what it means to be "approved" and by whom. There is also the matter of whether you told anyone/seller, your agent that you want to add more bedrooms and if you cannot, you do not want it. As Mr. Wilson explained below, it is also depends on the contracts and other factors. See a lawyer.
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