Using HOA funds to maintain land not owed by the association

Do your documents have anything to say about this? What are the terms of the easement?

This depends on the terms of the easement. If the terms specify that the association must maintain the property, then the answer is likely yes.

We have a similar situation. The entrance road to our property is via an easement over property between ours and the highway. Under the terms of the easement, we are required to maintain the road. We pay to plow the road when it snows. We also mow the grass on either side of the road for a specified distance.

Curiously, the business owner who owns the property also uses the road that we pay to maintain as the entrance to his parking lot.

Very typical for the person getting/using the easement to have to maintain it. Simple example is it snows and the easement needs to be plowed. Who would you expect to do so?

The easement(s) in question lies on portions of two tracts owned by the developer that abut the county road. The only reference to these easements that I can find is attached to our HOA's original declarations. According to the recorded material these easements are for ingress and egress by motor vehicles (to our HOA). This document further states that the developer and our association will pay an equitable share of the cost of repair and maintenance of the road. The developer is still building homes in sections added to our master association (as per the original declarations). This will continue for some time (much more available land). At some point plantings were added to the portion of the easement that is between the "egress and ingress" pavements. I can find nothing in our docs about who is responsible for these plantings. Our concern therefor is: should association funds be used to maintain these plantings? Yes, these plantings do make for a more attractive entrance to our development. However, an attractive entrance benefits the developer in the sale of homes.

I would hope you have the easement on your deed as well. Otherwise you may not have a legal right to use it and will need the developer to quit claim deed the easement to you or the HOA. A HOA declaration is not a deed.

You should also look at the developer's deeds to find the easement. You will need to do a title search to find it. Look at the current deed and work your way back.

As for the plantings, you should see what the deed says when you find it. You may not have the legal right to maintain the plantings, but unofficially the developer lets you.

The easements are recorded in the County "files" and include ingress and egress to our association property as I mentioned in an earlier post. Since these easements were recorded more than 300 homes have been sold and over the 25 years many have been resold with no problem.

If the easement only mentions "ingress and egress by motor vehicles" than that is all you have a legal right to do. If the developer allows you to plant things, its a permission issue, not easement issue. The easement is still owned by the developer and he pays taxes on it. So you cant "legally" do anything on the easement other than what is stated in your docs.

Is it proper to use HOA funds? That is up to you and your membership.

If there was no deeded access to that road, making the house impossible to sell, then the property would still belong to the developer, wouldn't it? It would, after all, be impossible to sell. Or maybe there is another explanation.

Easements may be created by a deed or by a recorded plat. A plat is favored as the wording on a deed must be copied each time a property is sold and the more text that must be copied creates more opportunity for error. In the case of a subdivision of more than a few homes, a plat is far more likely to be the recording medium than deeds.

I own two properties and there are easements on both. Neither of my deeds mention easements but both reference recorded plats where the easements are dedicated.