Easements

Simply stated it's my understanding that an easement allows the use of private property by others for SPECIFIC reasons such as utilities, maintenance, and drainage for example.

In our HOA several lots contain a 12' wide "Drainage Easement" as indicated on the plat and lot surveys. Under these are 18" culverts which direct the street drain's water runoff into the lakes.

Now... A person plants a tree or constructs a gazeebo or paver patio or whatever in the easement or above the culvert. For whatever reason the culvert must be serviced by excavation or digging in the easement.

Q#1... What are the liabilities/responsibilities here for the lot owner as far as removing the items and subsequent replacement or reconstruction of the items after the repair(s)?

Q#2... Lets say in the case of a tree the roots damage the culvert and is the reason for the repairs. How does that effect the lot owners liabilities/responsibilities as in Q1?

Thanks in Advance.. Peter

Donna,
For the purpose of continuing the discussion... I somewhat disagree with the sentiment of your answer.

The property belongs exclusively to the owner, period. You would be trespassing if you were to set up a blanket and picnic on it and it may even be within the confines of a fence.

If my understanding is accurate the easement allows a conditional use by other SPECIFIC persons or entities for SPECIFIC reasons so I don't see how the HOA could regulate it's surface use.

I MAY however risk loss of the items in/on the easement or use of the same area temporarily while a easement access "event" occurs. Thus the reason for my questions.

NOT saying your wrong, but trying to peel back a few more layers of the onion sort-of-speak.

Peter, I still cannot find the correct term for this type of easement but Legal Eagle has this on their site.

An easement is the legal right or privilege of a second party to cross, make limited use of, or apply certain restrictions to another party's property. Easements commonly concern the maintenance of utilities infrastructure or public rights-of-way. For instance, PG&E might retain the right to enter your yard in order to repair power lines, or community members might be permitted to use a pathway cutting through your property. Generally, easements remain with the land, regardless of the owner. If there is an easement associated with your property, it will be noted on your property's certificate of title.

Having an easement gives the utility the right to use the land, but the utility does not own it. However, the property owner may encounter certain restrictions on land use in an area covered by a utility easement. For example, if a power company has a utility easement, the property owner cannot plant tall trees in the area of the easement, because they could interfere with the power lines. Likewise, a swimming pool could not be dug out where there is a buried gas line.

So does your ARC or CC&Rs have restrictions re: your easements?

I was typing whilst you replied again.

PeterD3,
Maybe its in the HOA docs or the subdivision plan the legal wording for the easement. Typically if someone has a drainage easement on your property, they can keep, maintain and improve that drainage. If the HOA wanted to cut down the tree, its likely they are quite in their right because it is interfering with the drainage.

- If you planted it, you may be responsible for removal because it may interfere with the HOA easement.
- If a previous owner planted it, its likely the HOA would pay to remove it.

Peter,
We have similar if not exact easements at my location. At our place the culverts were installed at a later date to help with erosion from the run-off. It is my hope that our ACC prevent any planting or building within any part of a drainage easement. Our CC&R's specifically state that the POA or other authorized entity is not responsible to any damage to property located within the easement area unless the property was specifically approved by the ACC to be located within the easement area. Double check your documents because the specific drainage easement info should be there. You can also check ACC approval for specific approval within the easement area.

We have a huge mess in our subdivision. The HOA owns the roads. The easement along part of the road contains canal frontage leading out to a sought after lake.

Some homeowners have been docking their boats along this canal for years. But they were homeowners whose back prpperty came up to the road, across from the canal.

Fast forward to the 2000s - Now it's gotten out of control, with homeowners 5 streets back docking their boats along this canal.

The HOA board didn't confront this years ago and is still sitting on their hands.

Hi,

I am new to this forum so I'll try to explain my situation as best as I can. Thank you in advance for any input you may have.....

My wife and I purchased a lot to build on recently and have signed all of the paperwork/mortgage/construction loan, ect., and the builder just dug out the basement the other day. As I didn't have a detailed 'overview' of the lot schematics (not sure what the term is), my builder provided this for me the other day. In looking at the document, I discovered that in part of the property (within my property border), there is a statement that says "70' WD EASEMENT FOR LANDSCAPE TO PARKLAND HILLS.....". (I have attached document). On this portion of the property there is a very small hill that has ~12-16 6' pine trees planted. I had assumed that the owner of the property (who had it for 15 years) planted these at some point in time but now I am wondering if the association did this....I have a few calls in to determine. My plans for the property were to level the small hill and then relocate the pine trees to the back side of the property towards the road so that my family could then enjoy a large backyard. Now I'm not so sure I can do this based on what I see on this document. I've searched the internet hoping to find something similar to my situation but as of yet have been unable to find anything. Is it likely that the HOA has rights to this part of my yard and therefor I will not be able to touch it? If so, I assume that I am paying the property taxes for the entire area of the yard so if I am unable to use this portion as desired then essentially I should only be paying 2/3rds of the taxes. This just doesn't seem right to me....I would certainly welcome any input anyone has to my situation.

JeffreyB3, I checked out your documents and the key issue is that you bought in a Condominium community. You do not own the land at all. The difference between a condominium HOA and townhouse HOA is that condominium owners only own paint to paint inside the home; and "typically" own limited elements, like a balcony. A townhome community owns the land in front and back of the home, with the rights to enjoy the use of that property subject to easements issues. Condo owners do not own the land, hence cannot move trees, or have exclusive, private use rights to the land. So, upon reading your documents, I would say, no way can you move any tree or use any property. I am not an attorney, but am a Realtor in FL. I have lived in other states and the laws are typically similar for condominiums and townhomes. Read the plat/deed drawing notes and it should become clear as to the definitions and meanings by those easements.

Sheri,

I am not so sure that Jeffrey's lot is part of a condominium. The easement is granted to a condo association. That makes it unlikely that the association owns the property as one does not normally grant an easement to oneself.

There is not enough information to arrive at a conclusion. If I were an attorney I would want to see Jeffrey's deed, the full plot plan, and any recorded plats for the area. I would be especially interested in knowing why a condo association has an easement for landscaping on Jeffrey's lot. It could be that a previous owner let the property turn into an eyesore but he allowed the condo association to landscape that portion of his lot near the road. With a new owner building and taking care of the lot, the condo association may consent to abandon its easement.

I looked again at the plat. You're right: it does not show enough of the land to correctly determine what kind of property Jeffrey owns. But typically, if it is his developer's plat and it says condo association, it would lead me to certainly think he bought in a condominium community. He will have to read his deed to see what he bought.

Sheri,

I do not think you grasp the concept of an easement. "An easement is a certain right to use the real property of another without possessing it." The key word here is "another." One does not need to grant himself an easement to use property that he already owns.

The fact that there is an easement for a condo association to use a portion of the lot for landscaping tells me that it is unlikely that the association owns the property.

Peter,

Easements give the proper authorities the right - yes, the right - to access the drainage pipes as clearly marked according to your report. Any residential amenities built within the easement zone will have to be temporarily relocated in my opinion. A properly vetted neighborhood construction job would not setbacks and easements prior to the location of the job site.