Condo driveway being partitioned

Hi Eva:

I would recommend taking your documents and the plat to your local planning department and they can help you determine what is actual easement and whether it can be blocked. Potentially blocking might not be legal due to emergency vehicle such as fire or police access, if necessary.

If it is not easement then potentially your CCR can be amended with proper vote; however, it would need to be amended and properly filed to be enforceable.

Hi Eva:

I believe there is potential confusion. When referring to real property generally partitioning is discussing in essence dividing property. Below is a link and part of the text which may clarify for you:

Legal Definition:
http://legal-dictionary.thefreedictionary.com/partitioning
Most cases of partition involve real property. Persons can own property as tenants in common or joint tenants. As common owners of the property, they have equal rights in the use and enjoyment of the property. Partition statutes allow those who own property in common to sever their interests and take their individual share of the property.

Thank you for the clarification. I had not come across that definition, so my layman's take on the language is off the mark. I continue to feel, albeit intuitively, that it is not lawful for someone to erect a barrier on a "common" driveway, in much the same way that a homeowner could not erect a barrier on a street just to keep traffic from passing in front o their home. I know, I know...it's not a proper analogy but the result is the same. I'll respond back after the city/county weighs in on it, and a real estate attorney. One of the 2 "barrier errector" owners, with whom I have spoken, said the city said it was okay, but we'll see. But I feel certain he did not take all the documents with him when he had that conversation or he would have said as much.

The board of our association is comprised of 3 owners: Pres, VP (which is myself), & Secy-Treas. Our entire association is comprised of 7 owners, 3 of whom are familial. Those family members (heirs to an original owner of 3) own one unit that is rented, one that is reserved for their personal use on occasion (as is mine), and a unit that is undergoing renovation for rental. An elderly couple resides in one full time, another is vacant for sale, and the final unit is owned by a resident who lives there part-time.

Five of the 7 owners supported the planter dividers, without bringing the matter before the entire association of 7 owners. Thus, the 2 "outsiders" by virtue of not being included in any discussion beforehand, are not likely to be able to do much without assistance from someone in the legal field. If indeed the covenants will need to be amended (after the fact) to accommodate the alteration/modification of common elements, someone will have to draw up the amendment papers. It is my understanding that amending covenants is not something to be taken lightly, but in this case it appears there is no other recourse.

The objections to any such amendment by myself and the owner of the unit for sale are predicated on the fact that our use of the "parking" area which formerly ran the entire length of the driveway, has been reduced to that in front of only 7 units, and I doubt seriously that the other owners will take kindly to our parking in front of their units, although there are no dedicated parking spaces in this area, so technically I and my guests and family could park in front of their units if necessary.

I don't see how this can be resolved without legal assistance. Methinks most folks would object strenuously to having access to your unit/residence/home restricted in such a manner without prior notice or without the proper legal steps having been taken.

I am not interested in suing. I am interested in getting to the bottom of whether or not it is legal to do what 2 owners of the 7 owners have done. I plan to go to the city and see whether or not the driveway is an easement available to all of us or parking, which could possibly be modified. If the covenants can indeed be amended, then so be it. I just wondered if anyone had ever experienced a division of a driveway. I have talked with the first owner who erected the barrier and he said it was legal because the city didn't have a problem with it. While I respect your opinion, I am definitely not the problem. I have always abided by and believe in deed restrictions on property I own. These things only become a problem when someone ELSE doesn't do the same. Thank you for your input.

EvaQ,

I am not sure I understand your “word picture”.

You write “I own a unit in one of four 7-unit 2 story condo buildings, each unit having a "private courtyard with landscaping". All 4 buildings, separated by a 10' grass easement, share a common driveway in front of all the units that constitutes parking area but not specifically allocated to any one unit or building”, and “having acquired the unit with a driveway the entire length of the complex now reduced to 7 units wide”.

Later you post: “The board of our association is comprised of 3 owners: Pres, VP (which is myself), & Secy-Treas. Our entire association is comprised of 7 owners.”

First you seem to be talking about four (4) buildings of 7 units each, and then you seem to be talking about the total number of owners being 7. What about the other buildings? Perhaps you could clarify.

Now to your concern: You state that you are a condominium. So I assume that all the outside ground area, be it lawn, driveway, roadway, or parking area, is designated as Common Area, and that the Common Area in question, is either a roadway, or a driveway, and/or a parking area, per your Documents.

Are there any words that imply that any Common Area, can be used for other than its INTENDED PURPOSE – that is, the parking areas for other than parking vehicles, the driveways or roads for other than vehicles to drive upon.

Or are there possibly words like: vehicle parking spaces shall be used ONLY FOR vehicle parking, and that such areas are not to be used for the parking or for the storage of anything else.

That put aside - have you, as JanetB2 suggested in an earlier post, contacted your local Fire Department, and asked them to actually come out and visit your property to see how the “planter boxes” are placed, and if they impede access to Fire Trucks, and of course, other emergency equipment?

IMO you need an answer to that question, regardless.

The above text you posted is why I stated you really should check with your local planning and development department. If this area is designated as common “easement” area then they potentially would not be allowed to barricade said area within your community.

The documents do not refer to specific parking spaces nor are there any allocated parking spaces. Of course, residents would prefer that neighboring residents/guests not park in front of their seaview unit, but there is nothing to stop them from parking anywhere along the driveway in front of the building. What is not clear from the plat is whether the parking area/driveway that runs the length of the 4 buildings between 2 streets is divided in anyway between the 4 separate buildings/associations. That is what I need to have clarified. My deed reflects a 14.286% undivided interest in the general common elements. I'm assuming for now that I only have that 14.286% interest in the driveway in front of our building. The developer of almost 30 years ago was stunned to learn of the barriers and said he didn't think it was legal for the driveway to be divided and suggested that I consult an attorney for clarification. He felt that the documents should provide the argument against the barriers. All 4 buildings were built around the same time but there is nothing in the documents that could be construed as one building having any interest in common with the other 3 phases except for a dedicated easement for the driveway behind the 4 buildings, which driveway provides access to our attached garages. THere is an attachment to the deed reflecting the dedicated easement for all units in all 4 buildings.

I have a copy of one of the other phase's (building) covenants and they are identical to ours. I cannot access the public records for Galveston Co online so will have to check this in person.

Yes, the planter barriers do prevent resident/owner vehicular traffic from passing from one end to the other, so one must enter from the street closest to their unit, or from the bouelvard in front of the complex. Since our building is almost in the middle, we are impacted the most, since none of our 7 units now have street access except from the boulevard.

The driveway is 24' wide, and additionally there is a 4' sidewalk planter area that has spaced curb cuts for our vehicles' egress/ingress to/from the boulevard. There is room along the driveway for 2 parked vehicles and another vehicle to pass through but it's tight with 2 vehicles parked parallel to the curbs. It is clearly intended to be driven through as access to our units. Our building owners/tenants do not park in front on a regular basis. It has been used primarily as a drop off/pick up for residents at the front door, as we park in our attached garages with access behind the complex. I do not know how owners in the other 3 buildings feel about the planters. I have hesitated to agitate the situation not knowing the legality of the barriers.

2 of the board members, myself excluded, built the barriers. Another owner likes the barrier because 1) it is now planted with flowers and looks good and 2) there is now no vehicular traffic in the driveway in front of their unit. The remaining 2 owners who are not opposed to the planters/barriers are family members to 1 of the board members. So, they in effect cumulatively have a voting bloc of more than the 67% required to change the common elements. There is probably a loophole, anyway, that would permit the barriers because they are actually constructed across the driveway at both ends of our building and thus, seemingly, where our common interest in the driveway ends, so using this vernacular there is no actual division because they are simply a barrier preventing our ingress and egress along the driveway, rather than dividing the driveway into sections in front of our units. Where there is some opportunity for me to argue this case is that other owners cannot erect similar barriers to vehicular traffic, because doing so would effectively prohibit one of the other unit owners from being able to drive in and out at all. For instance, I don't have a curb cut in front of my unit, but there's one in front of my west side neighbor, so if that neighbor wanted to install a barrier and have NO ONE driving or parking in front of that unit, and if the neighbor to my east did the same thing, I would have NO way in and out. So, amending the covenants/declarations to permit such barriers effectively gives preference to 2 owners that is not afforded to the remaining 5 units. Thus, any such amendment would have to be very specific to where the barriers could be constructed.

I will just have to take all these plats to the proper city or county official and get more information on what is actually filed. I do have a copy of the recorded declarations for my building.

Thank you for your extensive comments. I was hoping for some encouragement in this matter. Intuitively it doesn't seem reasonable that someone could obstruct a common driveway...but it remains to be seen.