Is a deed restriction extinguished if the owner looses the landin foreclosure?

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Is a deed restriction extinguished if the owner looses the landin foreclosure?

“Declaration of Restrictions for parcel #xxx-xx-xxxz, in Yavapai County, AZ. This parcel can never be smaller than 1.5 acre. No horses permitted on the said [sic] property. Home size to be not less than 2800 square ft. custom build of one level only. These restrictions are impose [sic] by current owners XYZ Living Trust.” The person who added the restriction lives next door, but lost this land in foreclosure/bankruptcy. Since they lost the title can the restriction be challenged? I would like to build a smaller house.

Asked on August 20, 2011 Arizona

Answers:

FreeAdvice Contributing Attorney / FreeAdvice Contributing Attorney

Answered 10 years ago | Contributor

If the restrictions recorded on the adjoining land were recorded AFTER the mortgage or trust deed securing the loan on the adjoining land were recorded and if the mortgage or trust deed that was in prior recorded position were the instruments that were foreclosed upon where title to that property was lost, then it would appear that the subsequently recorded restrictions were wiped out as a junior recorded document on that foreclosed property.

However, if these restrictions were recorded on your property, then they remain.

If the restrictions you write about are on your home, one way to get them removed is to approach the new owner of the foreclosed property that recorded the restrictions on yours to see if there is any willingness to record a document rescinding the restriction on your property.

Good question.


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