CC&R Law Privately Among Neighbors - Who Is "The Decider"

[Bryan Hancock]

Background:

Subject property is in Texas.

We have a lot under contract with some CC&Rs from 1948 that were signed by a group of private land owners. The signatories appear to have owned land that was checker-boarded during the original signatures in '48. The CC&Rs were in force for 40 years are we later "amended" (it is a whole separate issue that they expired in 1988) in 2001; which was after the 40 years.

This shows up as an exception in our owner's title policy on Schedule B. We tried to get the title insurer's underwriter to remove the exception and they would not. Thus we're looking for an alternate path.

The trouble is that the person who appears to have been "the decider" for these CC&Rs died several weeks ago. We're having a hard time getting any information about who gets to interpret some of the clauses in the CC&Rs and this could impact the property value significantly.

Questions:
1. Do the CC&Rs *only* bind the original parties or do they somehow bind adjoining land or some other geographic area given that the original agreement (and possible later amendments) have signatures from owners of land that appear to be check-boarded?

This article:

CC&R Basics

would seem to indicate that this only applies to those that have signed off on the CC&Rs by stating this:

//Quote
When covenants are instead signed privately among neighbors, as in a mutual compact or agreement, they are still binding upon the signatories and may be litigated if breached.
//End Quote

I think I may be reading too much into it though. I'm calling my attorney in the morning, but I figured some of our sharp BP folks may know something about this.

The reason this is important is that there are other properties like ours nearby that are not necessarily a party to the CC&R agreement. The streets are common, but the addresses are not.

2. If the person that was originally empowered to speak for the homeowners died how do I figure out who we should now be dealing with? We have called a few parties to the amendment from 2001 and they haven't been of much assistance.

Any takers?

BTW...A separate issue is whether or not a lender would ask for this exception to be removed from a lender's policy. I have an email in to one of our preferred lenders and their Chief Lender should comment on this tomorrow as well.