[WSBARP] 3 story house meets 2 story CCR restriction

[Valentine, Gretchen (TRGC)]

I'm sure there are differences of opinion, but in my view the 'unless there is notice in the public record' phrase only applies to the sentence beginning with "However,...".

Gretchen Valentine | NW Regional Underwriting Counsel
Title Resources
Phone: 206-962-7744 |


[TitleResources]



From: wsbarp-bounces at lists.wsbarppt.com [mailto:wsbarp-bounces at lists.wsbarppt.com] On Behalf Of Marcus Fry
Sent: Tuesday, March 20, 2018 11:40 AM
To: WSBA Real Property Listserv <wsbarp at lists.wsbarppt.com>
Cc: kim holmeslawgroup.com <kim at holmeslawgroup.com>
Subject: Re: [WSBARP] 3 story house meets 2 story CCR restriction

Marc:
I read it the opposite.  The title company only covers the buyer if there is a recorded notice of the violation.  However, the buyer isn't covered if there is no recorded notice of violation even though it appears known that there is a clear violation of the CCRs in this instance.

Marcus J. Fry
Lyon, Weigand & Gustafson, P.S.
Yakima, WA.
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From: wsbarp-bounces at lists.wsbarppt.com<mailto:wsbarp-bounces at lists.wsbarppt.com> [mailto:wsbarp-bounces at lists.wsbarppt.com] On Behalf Of marc holmeslawgroup.com
Sent: Tuesday, March 20, 2018 11:27 AM
To: WSBA Real Property Listserv
Cc: kim holmeslawgroup.com
Subject: [WSBARP] 3 story house meets 2 story CCR restriction

We have a client set to buy a brand new 3 story house and, lo and behold, the builder didn't notice or ignored a CCR restriction limiting homes to no more than 2 stories.  Title company says the ALTA Homeowner's policy covers this and points to a "covered risk" provision that reads:

You are forced to correct or remove an existing violation of any covenant, condition or restriction affecting the Land, even if the covenant, condition or restriction is excepted in Schedule B.  However, You are not covered for any violation that relates to:
a.       Any obligation to perform maintenance or repair on the Land; or
b.      Environmental protection of any kind, including hazardous or toxic conditions or substances.
unless there is a notice recorded in the Public records, describing any part of the Land, claiming a violation exists.  Our liability for this Covered Risk is limited to the extent of the violation stated in that notice.

We're not aware of any publicly recorded notice of that the 3rd story is a violation.  Does this seem like adequate protection for the buyer or a recipe for disaster?



Marc Holmes
Holmes Law Group PLLC
2303 W. Commodore Way, # 306
Seattle WA 98199
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