Construction Easement

Our Association was deeded common area surrounding a building lot without mention of construction easement to that building envelope. The common area was never landscaped by the previous developer when deeded to the Association. Now that the lot within the building envelope has been purchased and due to be developed can the Association charge for easement? What would be a reasonable charge for that use? What about the developer's rights to use the Association's common area surrounding the building lot for staging? And finally, the developer feels it is not their responsibility to landscape the common area that they do not own and that is the Association's responsibility. Is there room for the Association to negotiate landscaping for use of the common area during construction? Thanks for your help on this.

Hi Lee:

Usually when a subdivision is created, there is a "plat map" that shows where the lots, common areas, easements, etc. are located; you might want to get a copy from your county's development or records office. Many plat maps show the easements on them and have notes at the end that explain the easements. I've also seen CC&R's where the developer gives himself an easement over all common areas for the purpose of buidling.

Normally, the developer will landscape the common areas prior to handing over the deed to the Association. If your HOA already went through turnover, then the developer may still have to landscape the area, but normally that would be after completing the construction. You can usually check with the county or city development office to find out what is required of the builder.

There is always room for negotiation.

J. Patrick Moore, CMCA