Question on Common Property Access When Water Level Rises and Falls

Is the owner complaining about people walking around the lake on "his" property?

Hi Chris

Just want to be clear:

Let's say the HO's deed says that his property line extends 100 feet from his foundation wall. At low tide, the water line is 125 feet from his foundation wall. At high tide, the water line is 80 feet from his foundation wall.

Is this the type of situation you have and is that the way that the HOs deed reads?

Ummm, if you haven't spoken to the other residents on the lake, you should do so immediately. I'm sure you have a very good reason as to why you haven't done so already. Sometimes the answers are in the audience and as well, collectively you can come up with a solution easier than dealing with just one person.

Go to the county records office and get a copy of the PLAT for your development.
This will show the property lines, easements, etc.

California's prescriptive easements aren't necessarily recorded. Here is a link to an article on the subject:

http://www.troutmansanders.com/files/upload/Prescriptive%20Easements%20in%20California.pdf

As the article states, the difficult part of proving that the easement exists is that the use must be "hostile" which is interpreted to mean: without permission of the owner.

So this could get complicated if the use began in the 70s. For each parcel, the HOA would have to find a 5 year period where the HO did not give permission.

Also, there seems to be a distinction between "giving permission" and "not objecting". "Not objecting" would not defeat the easement, but "giving permission" would. Definitely something to discuss with a lawyer.

Of course, if Chris could work something out with the landowners and have it recorded, that would be even better.

Not sure why, but there seems to be a resistance on this forum to the idea of a non-recorded easement. Every state has some form of equitable (unrecorded) easement. In addition to equitable easements, California also has easements by prescription. Here is a link I posted previously in this thread on California's prescriptive easements.

http://www.troutmansanders.com/files/upload/Prescriptive%20Easements%20in%20California.pdf

The article is about prescriptive easements but it also mentions equitable easements. It's only 4 pages and it's quite informative. The article opens with:

Imagine discovering one day that your neighbor, a complete stranger, or even the public at large
has acquired the right to use part of your property without paying you a dime. Through what is
known as a prescriptive easement, over a period of time others could gain the right to access,
cross, or otherwise use a portion of your land without your consent. The rationale behind
prescriptive easements is that long-time users of property can acquire a legal interest at the
expense of property owners who have slept on their rights.

Per the last post,

This is not a record easement and while this easement may be a prescriptive easement that is legally binding this would have to be decided by a court through a legal action at the point the access is questioned by the property owner.

This property fell under new ownership and the new property owner wants his private property rights maintained. From all the research I have gathered he has the right to to stop encroachment and use of his land until such time that a court order supports a prescriptive easement.

As part of the board I do not see this as an obligation or an expense the board should undertake. While members might want access, a member also wants his legal property rights maintained ,and it would seem a conflict of interest to support either parties.

I believe the boards duty is to notify each party that until an prescriptive easement is ordered, under a action of the courts, that use currently falls under the category of trespassing.

Additional excerpt (note this if 5 years in CA):

The requirements for establishing a prescriptive easement are similar to those for adverse possession. To obtain a prescriptive easement, a plaintiff must show use of the land as though it were an easement for ten years in an open and notorious manner that is continuous and adverse to the rights of the servient owner. Nice v. Priday, 149 Or.App. 667, 945 P.2d 559 (1997), review denied 327 Or. 82, 961 P.2d 216 (1998), citing Thompson v. Scott, 270 Or. 542, 546, 528 P.2d 509 (1974). ORS 12.050 establishes the 10-year period.

When a prescriptive easement claimant has established open and continuous use for a 10-year period, a presumption arises that the use was made under a claim of right or in a manner that was “hostile” to the interest of the owner of the underlying property. See R & C Ranch, LLC v. Kunde, 177 Or.App. 304, 33 P.3d 1011 (2001), citing, Feldman v. Knapp, 196 Or. 453, 250 P.2d 92 (1952). The burden of proof then shifts to the property owner to rebut the establishment of a prescriptive easement by showing that the use was permissive. The presumption of hostility or adversity may be rebutted by proving that the claimant was merely using an existing road that did not interfere with the defendant's use or by proving that the use was permissive in some other way. Beebe v. DeMarco, 157 Or.App. 176, 180, 968 P.2d 396 (1998); Arana v. Perlenfein, 156 Or.App. 15, 20-21, 964 P.2d 1125 (1998); House v. Hager, 130 Or.App. 646, 651, 883 P.2d 261, 320 Or. 492, 887 P.2d 793 (1994).

The prescriptive easement is “created,” by operation of law, once all the elements have been satisfied, including the open, notorious, continuous and adverse use for a 10-year period. However, if the servient estate holder is unwilling to recognize the right of use, the holder of the prescriptive easement may have to file a law suit to have a court declare that all the mandatory criteria have been satisfied.

Thank you! This forum is the most responsive I found to date and the feedback is greatly appreciated.

Sound advice.

Thanks,

I am of the same mind. The owner that bought the house said he had a title company do a thorough search for easements at the time of purchase. I don't want to get the association involved as there as there does not seem to be a need to access this area, there are just specific residents that have done so over the course of many years. I believe they would have to take any action, upon themselves, at the point the new owner contests their right of recreational use.

At any rate, I intend to take this detail to an expert and have this confirmed as to represent the board/association with this information at the next meeting/newsletter.

This is an issue that has come up time and time again as no action appears to have been taken to properly prevent access (CA civil code 1008) or obtain the prescriptive easement.

I am very much new to the role and my HOA seems to be in quite the mess, I truly do appreciate the feedback.

I agree.

Local laws vary dramatically John. There are no general statements that apply to all circumstances in all localities. No one should play armchair lawyer on this stuff.

There was an article about that on the front page. Our docs have the same verbiage, but if left to each homeowner, the look of the pond would change every 60 feet (the width of most lots here). Since half the pond doesn't abut any lots, we have to maintain that anyway, so the association just maintains all of the association property around the pond.

DOH - did I not say that above ?

The posting I was talking about, as to preventing further harm, was a private common area that connects to BLM land. This was related to the neighbor dispute.

The HOA has one entry/exit for motorized vehicles and that is and has been posted with a sign indicating right to pass per by permission of owner under civil code 1008. My concern, with preventing further harm, is related to cul-de-sacs and one of the common areas that connect to non-owned HOA property. Currently that common area is 8 acres of unused land and taking steps to prevent an easement with the proper signs posted seems reasonable.

My intent is still to seek legal services regarding the neighbor issue, to insure the HOA can remain uninvolved in a dispute and observer whatever rights are determined. I assume this is the right of the property owner, until an action is held against him, if that were to come about, but I will seek council to make sure there is not some per-existing easement.

Would gaining clarity on this matter qualify as an emergency event of as a reason to call an executive session outside of a normal open meeting? Our normal session 3 weeks out. It would be preferable to myself to be able to provide detail at this meeting, and hopefully be able to bring closure, rather than seek to gain council at that time.

Common Law:

If a person claims an easement against a landowner which has not been recorded

AND

the landowner does not recognize said claim

the ONLY

solution would be an 'action at law' to establish and RECORD said easement.

While the details may vary state to state the above 'doctrine' is accurate.

An unrecorded easement claimed against a new land owner is the stuff attorney's dreams are made of

hence:

CAVEAT EMPTOR

I know a place in Maine where beachfront property owners and the public have been battling the high/low tide property line issue since the year 1647 and its still in court going on 368 years. Soooo........ GOOD LUCK!

Clear and sound advice.

LOL … never mind misread a post and missed that this is common property. In which case I would do as suggested above and let the owner fight it out.

I am more of the mind of legal advice as this is not the only issue. These just a handful of things that need to be addressed.

Items I am aware of since becoming elected to the board: A member being forced to take down a fence within his properties border where no easement is defined on the PLAT maps that I have available, per board action. The acting President, giving approval for a homeowner to erect a fence on common property outside of a board meeting. Rights to access disputes over access to what is thought and seen to be common area by some. We have complaints of member use of roadways and easements to roadways to store personal property. We have the public accessing the lake and lake side property owner theft. We have the potential for both the public and private members to file easements if proper actions are not taken to prevent easements by use.

I am trying to get my board to see the light. I have one board member whose response was that this is the way it has been for 40 years.

It appears an actual reserve study has never been completed. Our legal fund is $500 or funding in the budget. There are no reserve funds, everything is defined as an annual budget. We have areas dedicated as common use that have never had any improvements nor are clear to be common property.

Stepping into this, really knowing nothing, seems this is what I get for being uninvolved for so long.

??

would a prescriptive easement need to be actually recorded at some point

??

would it need to be disclosed by a seller

??

how would a purchaser know of said easement unless recorded

??

do deeds actually mean anything

??

!!

long live the HOA

!!