Common Area Access/Right Of

Article 9 of our By-Laws states:

Section 1. Members' Easements of Enjoyment. Each Member has a right and easement of enjoyment to the Common Areas, and such easement is appurtenant to and runs with the land of every lot.

We were told by one of the developers when we were looking to buy land in our development that each lot had access to the 5 miles of trail system. The marketing brochures at that time also stated 'Every' lot had access to the trail system. The most recent marketing states "most" lots have access, and this changed after the fence was challenged.

A neighbor recently installed a fence that blocks several homes from accessing the trails unless they use a public road to do so. The DRC committee approved the fence, and the Board also upheld their decision. (Note: The fence was installed by a Board member who is also on the DRC. They recused themselves from the vote; however, our Board of 5 is made up of 3 members who sit on the DRC so it was no surprise that the Board supported the DRC's decision.)

The 4 or so homes that have had their access blocked is due to a creek that separates our lots from the trails. These neighbors who used to want to access the trails would just walk along the edge of their neighbors' lots until they reached the bridge on the Common Areas. No one had a problem with this until the neighbors built the fence. They previously lived in another home in the community but bought this one because it was a foreclosure. They do not like their neighbor which may have something to do with blocking access.

My question is simply what does 'appurtenant' mean in this structure? 3 lawyers have told us it definitely means that every lot has the right of an easement on their neighbor's property if needed to access the Common Areas. Do you agree? The two developers, who sit on our Board say they can not grant access to private property.

Thanks.

ditto

Frank,

An easement means that the property owner has granted others the right to use his property for certain purposes. Once granted, an easement is very difficult to remove as it requires the approval of each and every person who may use the easement. An easement becomes binding on subsequent owners.

The question in this case is whether the land that was fenced was subject to the easements or whether people were just walking across it as it provided easy access.

Easements are usually set forth in a plat, although they can be recorded in other instruments such as a deed. I hope the common area easements are set forth with some specificity as to where the common areas and other easements are located.

The bylaws of a non-profit corporation are not generally where one would find an easement granted. Bylaws govern how the corporation operates. Any rights the owners have to use of common areas should be set forth in the deeds to those lands, the plats, or some recorded document such as the declaration.

I never accept the word of a developer for anything. My experience with them has been that they know nothing of the law because they feel that none of it applies to them. Marketing brochures and salesmen's statements do not create an easement. The statement that "'Every' lot had access to the trail system" does not necessarily mean that the trails abut each and every lot; rather, it means that each lot purchaser may use the trail system.

Is your association still under developer control?

Thanks gentlemen!

I cannot find an "official" easement in any other document. The developers appear to be confident that they would win if challenged in court, at least IMO.

No, we are not under official declarant control; however, their voting privileges for unsold lots (10 each) is still enough for them to control all vote outcomes.

Yes, some of us have learned the hard way not to trust what they say at this point. In fact, whatever they say, at least a few of us now assume the opposite is true until proven otherwise.

Thanks again!

No easement? No right to cross private property without permission. Even without the fence, the homeowner could have you charged with trespassing.



Voting doesn't matter at this point. If these are individual lots, that have already been sold, you can't grant yourself an easement to a lot you don't own simply by voting. The easement needed to be recorded when the developer still owned the lot, before he sold it.

Homeowners still have access to the trails, they just can't walk to them over other people's property.

Do you own the land that surrounds your home? Or, is it a limited common element?

As I posted earlier, you need to go to where the land records are recorded. You can view your own deed and the deed to the property you are interested in. It's usually free, unless you want copies made. The deed should tell you exactly what you (or someone else) owns and what easements actually exist. Don't guess or assume. Go look. They're public records.

Thank you Bruce!

I googled Kansas law. Your belief is incorrect.

PS. Easements are granted by land records. Deeds, etc. And typically are agreed to by both the person granting the easement and the person receiving the easement.

Your bylaws mean nothing as far as "real" easements go. A board member could pass a bylaw saying anyone can cross Mr. Johnson's lawn to access the trails. It means nothing because Mr Johnson didn't agree to it.

Steve,

My view is straight from the controlling legal authority's mouth, here in KS. I appreciate your participation, but I will defer to the person who will actually make the decision.

I also agree with the general consensus, but as pointed out by one of the lawyers, our HOA has no authority to grant access via a public road. Again though, I agree that I/we made a mistake taking the developers' word for having access. Our fault, and I accept that. Sadly, the world we live in today I guess...

Thanks again everyone for your input!

I think what the attorney meant was that the HOA cannot grant an easement on or across a public road. If the common area abuts the road then there is access from the road. If there is private property between the public road and the common area, then there would need to be some form of access, such as an easement.