A service of:
Community123.com
Professional websites for HOAs & condos, since 2004
🎁 1st year FREE for HOATalk members! →
← Return to Topics List

HOA easements on owner property

Started by JC7 • 12 replies • 7292 views

💬 Join us to post & get advice from 50,000 HOA & Condo leaders.

Create Free Account →

⚡ Takes 30 seconds

Already a member? Log in

JC7
Posts: 31
Posted:
I know that subject line sounded a little confusing. Our California community has many easements we are responsible to maintain the landscaping and irrigation. These easements are part of the property owners actural property. Some Homeowners do not want us to touch anything on this easement claiming it's their property. Does anyone know if the HOA has a legal right or responsibilty to clear the easement? Especially if the easement has created a hazard. Are easement maps are recorded? I can't seem to locate such a map at the county recorders office.
Thank you
TimB4 (Tennessee)
Posts: 21,059
Posted:
JC,

You need to find the PLAT for the whole development. This is where the easements are recorded.

From USLegal.com: A plat refers to a map drawn to scale, showing the divisions of a piece of land. It describes the piece of land, its boundaries, lots, roads, and easements. A plat also means a small piece of land or plot.
SteveM9 (Massachusetts)
Posts: 3,699
Posted:
Quote:
Does anyone know if the HOA has a legal right or responsibilty to clear the easement? Especially if the easement has created a hazard. Are easement maps are recorded?


It really depends on what the easement says. It could say ANYTHING. People just make them up. You may OR may not be able to do what you want to do. If there is a survey of the property, they may or may not have put the easement on the survey. It should specify on the deed or easement addendum where the easement is. If its not absolutely clear, you may need to have a survey company come in and tell you where the boundaries of the easement are.
LarryB13 (Arizona)
Posts: 4,099
Posted:
JC,

In addition to what Tim wrote, easements can also be dedicated on the deed to each property. This does not seem to be the favored method of dedication as the description of the easement can get messy, making subsequent deeds subject to typos and omissions.

An easement is usually dedicated to entities such as utilities, adjoining properties for ingress and egress, or it may be dedicated as a hiking trail or road for use by the public.

My association has some 300 miles of dirt roads that are all built on easements; we do not own a lick of real estate. Even portions of some of our county roads are located on easements on private property.

The person or entity to whom an easement is dedicated has the right to enter onto the easement and alter the real estate in order to use the easement. If you have an easement through Mr. Adams' yard for irrigation pipes you do not need his permission to dig up that part of the yard to lay or repair pipes. If Mr. Adams has built a fence or a shed on the easement, you may lawfully remove it from the easement. This may seem terribly unfair but Mr. Adams purchased the property subject to the easement.

LarryB13 (Arizona)
Posts: 4,099
Posted:
There is a fairly good explanation of easements at
http://realestate.findlaw.com/land-use-laws/easements/?DCMP=GOO-REAL_LawBoardModifier-Easements&HBX_PK=+easements

PaulT6 (California)
Posts: 409
Posted:
All kinds of possibilities. We have running "recreational easements", about 20 feet wide,
running through the "back yards" (no fences) that are actually common area. They are called "green belts" As mentioned, you need to review an official plot plan, possibly available fron your Assessor's Office. If not, they can probably guide you to the proper place.

Paul T
JohnC46 (South Carolina)
Posts: 14,265
Posted:
JC

Generally an easement is part of the owners property but they have agreed to allow access to such easement and generally the property owner maintains the easement as it is part of their property.

One very common easement in my neighborhood are the underground (buried) utility lines that run along the side of the streets and along/through the front of my yard. The easement intrudes into the front 10 feet of my front yard, along the street. I am responsible for maintaining the easement that is in my front yard.

I also have another (water storm drainage pipe) along the side of my houss to the pond behind my home.

The easement prevents me from stopping the utility company from coming in and ripping up the front of my yard to access the utility lines. Usually the easement says they must restore the easement to its original condition. Problems do arise when one wants to build on an easement like install a fence to their property line that crosses (boxes in) the easement. As an example if you call the utility company and say I am going to fence the easement in, is it OK? They will not say no nor yes. They will refer to the fact that they are obligated to restore the easement to its original condition and nothing more.

Some easements will grant right of way (free use of) in perputity (like a common used driveway/road) so no one can fence/block that in.

Not sure this answers the original question as more info is needed on the type of easement and its original granting.

Hope this helps and if nothing else it should about some easements.

JohnC46 (South Carolina)
Posts: 14,265
Posted:
MORE

According to the link Larry posted:

Uses of Easements

Once an easement is created, the holder of the easement rights has the right and the duty to maintain the easement for its stated purpose, unless otherwise agreed between the holder of the easement rights and the owner of the underlying property. The holder of the easement rights can make repairs and improvements to the easement, provided that those repairs or improvements do not interfere with the rights of the owner of the property through which the easement exists.

KevinK7 (Florida)
Posts: 1,343
Posted:
From my understanding, a homeowner then has the right to revoke an easement to an association then?
TimB4 (Tennessee)
Posts: 21,059
Posted:
Quote:
Posted By KevinK7 on 10/16/2012 6:14 AM
From my understanding, a homeowner then has the right to revoke an easement to an association then?

Is it a new easement or an existing one?

Only governments can force an easement.

An Association may be able to force an easement depending on the deed restrictions.

If it's an existing easement, it depends on the language used. For example, a utility easement can be used for all utilities (current and future).
SteveM9 (Massachusetts)
Posts: 3,699
Posted:
Quote:
Posted By KevinK7 on 10/16/2012 6:14 AM
From my understanding, a homeowner then has the right to revoke an easement to an association then?

No. The homeowner does not own the easement. The person with the easement does and the easement exists no matter who owns the actual real estate.

Lets say I have a water pipe going through your property. I have an easement for a water pipe. I can dig up and maintain that water pipe on your property forever. You cannot legally prevent me from doing so. The only way to discontinue this easement is if I no longer need the water pipe and you buy the easement back from me for $1 or whatever.
NancyG3 (North Carolina)
Posts: 342
Posted:
JC - This is my experience with easements. When I purchased my property there was a stormwater easement between my house and my neighbor. I am to maintain the property (cut the grass and plant nothing in the easement). If there is a problem with the stormwater pipe then the Board (who has the permit) is to fix the problem. I cannot stop them. At one point the Board decided to place a stormwater pipe at the back of about 25 homes and connect into the stormwater basin at the corner of my property. There was no easement there. The Board had to extend the landscaping easement (which the Board took care of) and obtain a permit to install the stormwater pipe. The Board had to obtain survey and file with the County, then submit plans to the State before the State issued a permit. The information pertaining to easements for our Assn is in our Covenants. You definitely need to find out what type easement is involved. Hope my info helps.
LarryB13 (Arizona)
Posts: 4,099
Posted:
Quote:
Posted By KevinK7 on 10/16/2012 6:14 AM
From my understanding, a homeowner then has the right to revoke an easement to an association then?

Easements can be revoked but it seems to be pretty tricky.

I know of two property owners who granted easements for the construction of public roads and then revoked them, but in each case the property had not changed hands. That is, the person revoking the easement was the same person who granted the easement.

By contrast, I found an Arizona Court of Appeals case where an access easement had been granted by prior owners and both the dominant and servient estates had changed hands many times over the years. The easement was no longer used because a public road had been built on the other side of the properties. The owner of the servient estate (the lot where the easement existed) sought to remove the easement because it had been abandoned. The court refused to allow the easement to be removed.

My best guess is that once a property has been sold, removing an easement can be difficult.

🎯 You've read this entire discussion

Join the conversation with 50,000 HOA & Condo Leaders:

  • ✓ Ask follow-up questions
  • ✓ Share your experience
  • ✓ Get expert advice
  • ✓ Access 350,000 discussions
Create Free Account →

⚡ Takes 30 seconds

Already a member? Log in here

Terms of Use and Privacy Statement