Who Owns the Sidewalks?

IMHO they did you a favor. If you own the sidewal you are responsible for the upkeep. I would keep that letter from the attorney on file. In a hundred years, when the sidewalk is cracked and damaged, you have them to repair / replace it in fornt of your home on the top of the soil you own. You were handed a blessing IMHO.

Tim, that is what I was trying to convey. Gr8 advise! as usual.

John,

Don't think of it as taking ownership. Think of it as taking responsibility for the Sidewalks. You still own the land.

Since your plat indicates the easement and your CC&Rs were amended for the Association to take responsibility of the sidewalks that are on your property (in addition to any on the common property), I suspect that this is the way it will be.

I certainly understand your desire to take control of things that are on your property vs. having a shared responsibility for items that are not on your property. However, this is the way life typically is when you are living within an Association.

Expecting that you don't want to move, the best thing to minimizing an Associations impact on you is to become involved with the governing of the Association. I know it sounds odd that to minimize the impact you need to devote some of your spare time to serve within the Association (sort of a Catch 22). However, that is the best way that I know of.

Tim

You purchased your property subject to the recorded easements. An easement is permission given by the property owner allowing another party to use a portion of the property for some specific purpose. In this case, the easement is not only for the sidewalk but also for utilities.

If you dig up the part of your yard where the easement is you may find buried electrical cables, water pipes, sewer pipes, phone lines or cable tv. You don't own those utilities even though they are on your property. The only difference between the sidewalk and the utilities is that you can see the sidewalk.

I would concur with those who said the HOA has done you a favor by taking ownership of the cement slab that lies on top of the ground in the sidewalk easement. It is now the HOA's responsibility to maintain the sidewalk.

I have no doubt that the developer told you the sidewalk was yours. He wanted to avoid responsibility for maintaining it. The HOA's lawyer has stated the case correctly, you own the ground under the sidewalk and the HOA owns the concrete slab on top of it. Because of the easement for a sidewalk, even if you did own the slab you cannot lawfully prevent others from using it. By its very nature the sidewalk has always been a common area and the revised CC&R's changes nothing except to clarify who is responsible for the slabs.

Thank you all for your helpful comments. Now, I’m really confused.

LarryB – are you saying that the association owns everything on the surface of the 8-ft utility and sidewalk easement, even though the easement is on my property and not on the association’s property? Do they own the landscape materials that I placed there? Does it matter that the sidewalk wasn’t built until I bought the house? I don’t see how the association came to own the sidewalk. The subdivision plat and tax records show me as the owner. I can’t find anything, in writing, which gives ownership of the sidewalk to the association. Could you explain what you mean by: “By its very nature the sidewalk has always been in the common area?” If that were true, wouldn’t the easement itself be in the common area and not on my lot as shown on the subdivision plat? If that were true, the association wouldn't need to change the declaration to clarify that they own the sidewalk - would they?

I really appreciate your comments, and I hope this discussion is useful to other Forum Members.

Easements are the most common "restriction" of land ownership yet the most misunderstood by people purchasing land. Here is a short explanation:

Although the actual property lines are defined within a survey, under certain circumstances the boundaries may be crossed, with or without the owner’s permission. An easement allows another person, or municipality to encroach upon your property. There are different types of easements, which have specific legal purposes. A Real Estate Lawyer can go more in depth about easements.

Property easement is a right to use some part of a property for a specific purpose. A survey will define the property lines to hopefully prevent any questions of land ownership.

An express easement may be contained in the deed to the property or in another document. Some examples include:

* A utility company can run power lines on a property
* Adjacent property owners may enter into an agreement to share a common driveway that extends over both properties.

In your case the sidewalk falls within the easement. So while your property line extends to the end of your lot, you cannot do anything that impedes the easement. For further info check out "easements" on Wikipedia. http://en.wikipedia.org/wiki/Easement

Your question is "Who Owns the Sidewalks?"
The answer is "The Association"
Your question is - Who owns the dirt the sidewalk rest upon?
Answer is "you do"
Your question is - Who Maintians the sidewalk and provides insurance coverage?
Answer, "The Association does"
Your question is - Who owns the sewer drain under the sidewalk that is under your dirt?
Answer is They do
My Question is - Do you get it?
Answer is - ?

Well said Brad.

That is actually great man!!

Hi Donna,

Welcome to the forum.

You Association is correct that they may only spend money to maintain the common area. That is unless the CC&Rs specify that they are to maintain all the sidewalks. In the original posting, John specified that his Association's governing documents specified that the Association was to maintain the sidewalks. What does your CC&Rs say about responsibility of the sidewalks? Is it even mentioned?

Tim

We have a big copy of the map. The arrows on the common area stop at the curb. We carefully read the CCRS and can’t find anything about taking care of the sidewalks by the HOA or by us.

I have monitored this site for years. Since no one else has commented in support of John’s position, I was compelled to join the forum and add my opinion. I am retired from a career as a right-of-way agent with a state highway department. John’s concerns are well-founded. His HOA acted improperly and, possibly, illegally. The opinions of BruceF1, HoaC, and other’s were uninformed, and the hostile, self-righteous, tone of their responses was unjustified.

John’s original question was “Who Owns the Sidewalk?” John provided the following information:

1. The subdivision plat and original declaration identify the common areas as “Tract A.”

2. The subdivision plat identifies “Tract A” as the streets and curbs (not the sidewalks).

3. The subdivision plat shows a public utility & sidewalk easement on John’s lot, adjacent to the curb.

4. The subdivision plat and declaration were recorded as separate documents.

5. The sidewalk was constructed when John purchased the house. (John paid for the sidewalk.)

6. In spite of John’s objections, the association amended the declaration to state that Tract A “includes the sidewalks” and “the sidewalks are owned solely by the association.”

7. The association did not modify the plat to show that the sidewalks are in “Tract A.”

In my opinion:

1. The association does not own the sidewalk. The association only owns the property located within the boundaries of “Tract A” as shown on the plat.

2. Only “Tract A” (without the sidewalk) was conveyed, from the developer to the association, because the original declaration defined the conveyed common area only as “Tract A.”

3. Since, the sidewalk was not conveyed to the association, and since the association did not construct the sidewalk, the association does not own the sidewalk. The association has never owned the sidewalk.

4. Had the association constructed or repaired the sidewalk, it would likely have violated its own covenants which prohibit improvements outside the common area.

5. The association may not change the boundaries of the common area simply by voting to modify the declaration.

6. By amending the declaration, the association created a conflict between the plat and the declaration. The plat identifies “Tract A” as streets/curbs. The amended declaration identifies “Tract A” as streets/curbs/sidewalks. (The information on the plat takes precedence. See comments by RogerB, and others, in May 2007.)

7. The easement grants members of the association the right to traverse the easement. It does not convey, to the association, ownership of the concrete or any other property within the easement.

8. The association may have violated state statutes by recording a false claim of ownership. The association may have exacerbated the problem by willfully continuing the claim, in spite of John’s objections.

9. The attorney’s claim that “the association owns the sidewalk, because the declaration now says they own the sidewalk,” lacks merit and is contradicted by what is shown on the official plat-of-record.

I think John has a viable case against his HOA. He shouldn’t be dissuaded by ill-informed opinions expressed in this forum. If John goes to court, he will have a plat, survey, title, title report, tax records, purchase agreement (and his construction contract?) to support his argument. The association will have . . . what? . . . the opinions of BruceF1 and HoaC ? John won’t be wasting money by consulting an attorney. In fact, it might turn out to be quite profitable for him.

Good luck John.

Hello Martin,

We have the opposite problem. Most row home tracks in our community have backyard access sidewalks, like an alley, except those that back up to a city road. I believe there is a 10 foot easement from the city/county road to our back fence. There is grass (maintained by the HOA) and I have mentioned to the HOA board that we would like a sidewalk so we can safely take the trash to the front for pick-up. The response was that it's County property, and we would need to ask the county to install it.

The County used to pick up trash in the back and it wasn't an issue then. I don't like dragging our bins through the uneven, dog turd grass and don't like walking down the road either. Do we have the right to press for a sidewalk?

I had installed an inconspicuous gate (when we replaced the whole fence) to the side of our house which gives me access to the neighbors sidewalk and I take the trash around that way. Separate HOA issue, but our fence was approved by the HOA 2 years ago, and you cannot see the gate unless you look over the fence to see the hardware.... I witnessed a board member do this after some lovely neighbor complained about our secret entrance.

We don't know if we have any leverage since they approved our fence as is And if they press us to permanently close our gate, do they need to grant us safety?

We have never been in HOA arrears and I am in the process of getting on the deed (recently married) to get on the board myself.

Your input is welcome.

-Valerie

Your postings do not note which State you are from. Potentially your Local Government Statutes and State Laws can determine the answer to your questions. In my last HOA each owner was responsible for the sidewalk in front of their property, due to the deed allocated that property to the individual owners. My local City does have a fund which will assist owners with sidewalk repairs if needed. If in past this was an Owner / City funds to be used for repairs and your HOA took on the responsibility ... I am not sure what your issue is ... if the HOA wants to take on that responsibility while I myself might think is stupid ... potentially let them make your day.

LOL ... Sorry did not notice due to couple other postings after Valerie that she activated a very old thread. Valerie ... this thread is very old ... if you have a question or concern it would be better to start a new thread ... . Thanks Douglas ... good catch!