HOA Responsibility for Maintaining Easements

This fact would not make the property the responsibility of the Association. The Association is responsible for common areas. An easement could just as easily be on private property vs. common area.


I would expect that homeowners may enter into any contract they wish with the property that they own. If a neighbor does wish to grant a utility easement on their property where none existed before, they should contact a lawyer versed in property law to draw up the necessary paperwork.

The homeowner should also be aware that by granting a utility easement, they are authorizing utility companies (perhaps more than just one) to enter their property at any time needed and perform any necessary work. There may also be restrictions on what you may or may not place within the easement. This is why a lawyer should be involved to properly advise you.


This would not necessarily be an HOA issue. This would be a private contact between all the parties. Since easements are being granted to utilities, they must be properly recorded and attached to all deeds involved. Failure to do so can cause issues when people try to sell the property.


A utility easement would have been in the Plat at your county land office. This is the aggreed right of way for all utilities. If an individual doesn't want to agree to allow an easement on their property, unless it's required by the city/county the Association can not force them to do this as the Association has no legal right, in my opinion, to give away or grant use rights to property they do not own. I would also suspect that the individual who doesn't want to grant the easement, would have a very strong case by pointing to the county land records and informing a court that an easement contract was already in place.

Not knowing the full story, the larger question is, why isn't the person who built a fence on the easement being made to relocate the fence? They should probably also be required to pay for any damage done to the pipes (but that would be an issue between the utility company, perhaps the city and the individual).

As an FYI:

Easement

n. the right to use the real property of another for a specific purpose. The easement is itself a real property interest, but legal title to the underlying land is retained by the original owner for all other purposes. Typical easements are for access to another property (often redundantly stated "access and egress," since entry and exit are over the same path), for utility or sewer lines both under and above ground, use of spring water, entry to make repairs on a fence or slide area, drive cattle across and other uses. Easements can be created by a deed to be recorded just like any real property interest, by continuous and open use by the non-owner against the rights of the property owner for a statutory number of years, typically five ("prescriptive easement"), or to do equity (fairness), including giving access to a "land-locked" piece of property (sometimes called an "easement of necessity"). Easements may be specifically described by boundaries ("24 feet wide along the northern line for a distance of 180 feet"), somewhat indefinite ("along the trail to the northern boundary") or just for a purpose ("to provide access to the Jones property" or "access to the spring") sometimes called a "floating easement." There is also a "negative easement" such as a prohibition against building a structure which blocks a view. Title reports and title abstracts will usually describe all existing easements upon a parcel of real property. Issues of maintenance, joint use, locking gates, damage to easement and other conflicts clog the judicial system, mostly due to misunderstandings at the time of creation.

It should, otherwise there could be difficulties in the future if one person is aware of an easement and the other one (a new buyer) isn't. However, you should check your State's laws and abide by them as every State can be different.