Easement in a covenant.

I am curious. Reading some governing documents, there is reference in a 1979 covenant that if an HOA were to be formed they could run sprinkler lines or access the properties for lawn care services. (I have to double check the exact verbiage). Now I haven't found any easements filed related to the properties in question which leads me to wonder - were these covenants created in lieu of an easement?

As I have written in the past, my covenants have expired. Would that essentially extinguish this "easement" on the property?

I don't plan on making this an issue but I have experienced in the past the sprinkler line busting flooding my yard with reclaimed water and was curious about possible problems should this occur again. For instance, what if the pipe bursts and the HOA's insurance refuses to cover damages because no easement exists and they insist that the pipe essentially becomes my problem or a costly problem for the membership?

I wasn't sure if this was something common in documents or just poor planning during the development of the neighborhood. It is possible that an easement does exist and I just haven't been able to find it yet.

My understanding is that easement tend to continue in perpetuity, and in situations like a road, ingress and egress must be permitted.

My question is how an easement is established. I thought one is filed with the county and details what it is for. In my neighborhood, it looks like the developer just wrote it into the covenants. If that is the case, I would see it as not a true easement. In the example I gave before regarding sprinklers, the only authority to have the sprinklers on a homeowner's property came from the covenants. That agreement came with an expiration date with procedures outlined by law in how to extend such an agreement. One party (the HOA) failed to renew the covenants and so that agreement ended. Had they filed a proper easement this wouldn't be an issue.

I didn't know if this is something someone else familiar with easements has ever heard.

I base this off of a situation in my other neighbrhood where they filed easement agreements with the county to build a wall and to have access to maintain that wall.

I will post the exact language of the covenant when I get a chance.

I do know for certain it is not on the plot for the entire neighborhood. I have those documents and the only easements indicated are for sewer and drainage.

Here is the actual covenant titled: Article III: Easements

Easements for the installation and maintenance of utilities and drainage facilities are shown on the plat or record and the same are reserved for such use. Within these easements, no structure, planting or other materials shall be placed or permitted to remain which may damage or interfere with the installation and maintenance of utilites or which may change the direction of the flow of the drainage in the easement, or which may obstruct or retard the flow of water through drainage channels in the easement. The easement area of each Lot, and all improvements to it, which a public authority or utility company is responsible.

Developer reservs the right to assign the use of any and all easements shown on record plat, or hereafter created, before the total Property being subject matter is sold by Developer, for installation of utilities or other uses deemed by it to be necessary for the service of the Property and any wall, fence, paving, planting or other improvements placed thereon by the Owner if theProperty on which the easement lies shall be removed if required by the Developer or its successors or assigns at the expense of the Owner.

The Developer, for itself, its successors and assigns, herewith reserves and is given a perpetual, alienable and releaseable easement, privilege and right on, over and under ground to erect, maintain and use, electric and telepohone poles, wires, cables, conduits, water mains, drainage lines or drainage ditches, sewers and other suitable equipment for and use of electricity, telephone, gas lighting, heating, water, drainage, sewage, CATV Cables and other conveniences or utilities on, in over and under all the easements as the same may appear on all the plats recorded with the Property, whether or not such easements are shown on said plats to be for such purposes and on, in over and under a ten foot strip at the back of each Lot and on, in over and under a four foot strip along the interior side of the plot lines of each Lot shown on said plat. The Developer shall have the unrestricted and sole right and power alienating and releasing the privileges, easements referred to in this paragraph, and an Owner, subject to the same privileges, rights and easements referred to herein, shall aquire no right, title or interest in or to the poles, wires, pipes, mains, lines or other equipment placed on, in over and under the Property, which is subject to the said privileges, rights and easements, all such easements including those designated on the said recorded plats are and shall remain private easements and the sole exclusive property of Developer, its successors and assigns.


The only other relevant passage would be Article IV regarding "reservations for lawn sprinkler system" in which it states the following:

Devloper reserves to itself, its successors or its assignees the right to construct, operate, maintain and repair a fresh water sprinkler system over, through, and upon the Property. To carry out the intent of this Covenant, there is hereby reserved in favor of the Developer the right to operate, maintain and repair the fresh water sprinkler system over, through and upon all of the property. Owner shall be liable to Developer for the costs of repairs to the Sprinkler system when such repairs are caused by or through vandalism, malicious conduct or negligence of the Owner."

From my understanding of what is written, the Developer identifies that there are only a a couple recorded easements for utilities and drainage. The other so-called "easement" is really a Developer-granted power to install, maintain, and operate a sprinkler system, which it says can be granted to its successors. The only problem is there really was no successor. Yes an HOA came into existence but it occurred due to some kind of business agreement - nothing identified in a filed covenant. In another court case involving a similar situation, the courts ruled that the authority of the HOA ceases to exist once the developer loses any controlling interest in the neighborhood. The only document granting power to the HOA was a 2002 amendment where they granted themselves authority over the association - nearly 20 years after the exit of the developer.

Because these covenant-granted easements were never recorded as a separate instrument and remained part of the covenants, Florida's Marketable Record Title Act would erase those powers.

I would also like to point out that the covenants state that there is permission for a "fresh water" line, not a "reclaimed water" line. I would believe that this would also open up the HOA to more liability. Since a successor was never properly granted authority, these reclaimed water lines can pose a huge risk to the neighborhood.

Of course this is all my interpretation, and would require huge legal action, action that I highly doubt anyone of my neighbors could afford, but I am sure some money-hungry lawyers may find this situation to be a perfect payday.

> Because these covenant-granted easements were never recorded as a separate instrument and remained part of the covenants, Florida's Marketable Record Title Act would erase those powers.

This sounds to me like an argument a lawyer would be happy to go to court with.

Win or lose, he still gets paid, right?

The plat for the neighborhood has the utilty and drainage easements clearly marked but the sprinkler "easements" have no reference other then the covenant. The Florida acts as an eraser to all encumberances on a property, not just hoa related ones. I don't think it would apply to anything else.

Currently the HOA sprinklers seem to run along the utility and drainage easements but the way it is worded it sounds like they have given them the freedom to do whatever they want. Sounded to me like a developer trying to do find an easy way out and give them this power in advance while the properties are being developed. They didn't really consider the long term consequences of their actions. I don't think any sprinkler was built until 1984, when the developer made a deal with a second corporation, sort of saying "Tag! Your it. You control everything while we wipe our hands clean!". Th

So is it me or are these articles a bunch of unnecessary legalese???

I disagree. I actually read my governing documents (if any), as well as any pertaining laws, regulations, etc., and act accordingly. This came up recently because I was considering having work done on my property and was looking into the easements and setbacks for the property. Some of the improvements that I was considering may possibly affect the association's sprinkler system and upon research I was unable to find anything filed apart from some mention in a covenant. And while I may be out of the HOA, the HOA continually tells my neighbors that the C&Rs continue to exist, so yes, this could potentially become a dispute. I was curious what others thought about the covenants and the method in which the Developer created their "easements."

While I may have many issues with my neighborhood, I believe in working out any problems. I'm not looking for fights, but I also want to be prepared and explore every facet of a situation. If I wanted to, I could make this an issue, start yanking out sprinklers and capping them off at the property line, or demand that the association re-route them, but I don't. I could have my lawyer fire off some letters, but I don't. It is not worth the stress to pick a fight.

I feel very strongly about property rights, contractual agreements (C&Rs), etc. and believe that these organizations should be held to the highest of standards.