First of all how could a title company insure against something not in the public records
Second am I wrong to think if its not in the public records chances are that its not enforceable
No - I've seen many examples of unrecorded documents that have been enforced. Your are paying for title insurance. It should cover everything, but they are too lazy to do any research outside of the recorder of deeds office.
And now I have a question on a deed restriction for our resident shysters:
I'm doing an apartment project right now. The City has approved the concept plan, which depicts 8 apartment buildings, each with six units. This is affordable housing, next to a train station (perfect).
Now we are going through the entitlement process, which for me includes the ALTA survey, preliminary plat and preliminary engineering. I just got off the phone with a shyster, who is concerned about this deed restriction. The restriction states:
"No development consisting of more than 7 single family residences will be permitted on the property."
The deed is from 1945.
The shyster will be asking the title company shyster to insure over this restriction, based on the (home rule) City's commitment to rezone the property.
It will be very interesting what is decided here.
I told the shyster to do some research on case laws.
Of course, deed restrictions that include things like not selling to blacks (you'd be surprised how many of these are out there) or other crap like only selling to Germans, are thrown out.
(I'm using shyster as a term of affection, by the way)
