Selling of HOA Common areas

Was a title search done when you purchased the property?
Did you get a warrantee deed or a quitclaim deed?
Did you get a mortgage?

Here is the chain

1960 Warranty
1973 Warranty
1974 Warranty deed
1976 Quitclaim between wife and husband
2001 Quitclaim between wife and husband
2004 Quitclaim between wife and husband
2015 Warranty to me

The bank who holds the mortgage organized the title insurance. However, doesn't the warranty deed without reference to restrictions protect me?

If you have a mortgage, your mortgage company probably required title insurance as part of the transaction.
If you have a warranty deed, the prior owner guaranteed clean title.
Whoever did the title search is potentially liable if they didn't find and report on the easement.

So you have 3 potential sources to recover from if in fact there is a cloud on your title.

Suggestion: File to quiet title against all lot owners (including your neighbor) who might have a claim under the association filings. Should probably see a lawyer to do this. Shouldn't be that expensive. Ask lawyer who you can recover your legal costs from?

The Association exists.

It may not be active.
It may no longer be incorporated.

However, the Association is typically created by the deed restrictions.

I doubt the membership took the time to actually abolish the Association itself (which would require amending the deed restrictions).

The last thing I can find is a statement of the last event which was

"Admin Dissolution for annual report"

Do you know what that means?

Yes. Most states require that corporations file an annual report, usually on form provided by the state. The penalty for not filing is that the corporation is administratively dissolved by the state, meaning that it can no longer do business until it is reinstated. Reinstatement usually requires filing all the delinquent annual reports and paying all the fees, including late fees.

I looked into the quiet title that was recommended and I am not sure how that will benefit me. I already have a clear title- the question is - can I use the land I own.

Additionally, since the owners I bought it from owned and lived on the land for a time, wouldn't that constitute an adverse possession if it was more than 5 or 7 years? The association did not file any action that I am aware of at that time.

Oh,

One other argument (or tactic) would be to determine how much each member of the Association should be contributing to the overall upkeep of the property for their expected right of use. Once money comes into play, many will be willing to sign over a quit claim deed to avoid spending money.

Again, something to discuss with an attorney (as Larry suggested).

Thank you to all of you that are writing in-

Question - According to MRTA - if the covenant has been violated and accepted, and there are multiple members of the community violating the other parts of the restrictive covenants, wouldn't they be deemed unenforceable or obsolete?

Also - I thought common areas of HOAs could be sold to individuals if the HOA agrees - if so - how do they go about altering restrictions?

Since you state that the property is in Florida, with your searches have you found any revitalization attempts?

No - not yet. There was one easement that was carried out by a nonprofit - but it was for a different lot, not mine.

Possible course of action:

Put up a fence and "no trespassing" signs that face your neighbor.

If neighbor takes you to court, that would be a challenge to the clear title that you think you have.

If you are sued, notify title insurer that they should defend.

Excuse me- I meant to say the association vs the neighbor

I thought the purpose of MRTA was to clear pieces if land of old restrictions so they could be utilized ?

Could you explain how it could clear it and still leave the easement?

Also, again, thanks to all for suggestions and advice.

IMO, it comes down to money. Fighting one is cheaper than fighting many.

If you win against that one, who in their right mind is going to challenge you after that?

But that's just my opinion. Best to consult a lawyer and get some estimates of what the battle will cost you?

Also discuss fence versus house and plat questions with lawyer.

Be sure to come back and let us know what your lawyer says.

I see what you are saying.

As a property member in the community , couldn't I built a house on the land? There are no restrictions on what can be put on the land, but rather who can use it. I would be a member of the community .

Another thought- is it possible to split the lot and provide for some of it to be used by the community? I have already granted the county an easement for a drain- would that not satisfy that the lot is being used by the community ?

Finally, how is it that another lot with the same restrictions is now owned by the county and is not being used by the community?

Thanks for any insight again

Here is part of a discussion regarding abandonment of an easement, citing Restatement (Third) of Property: Servitudes.

¶9 An owner of an easement may abandon it by relinquishing his or her rights to the easement. Restatement [(Third) of Property: Servitudes] § 7.4. “However, because abandonment is a voluntary, unilateral act on the part of the servitude beneficiary that creates a windfall to the owner of the servient estate, often without any corresponding benefit to the abandoning beneficiary, abandonment is difficult to establish.” Id. cmt. a. The mere failure to use an easement, even over a lengthy period of time, “is seldom sufficient to persuade a court that abandonment has occurred.” Id. cmt. c. Although the amount and nature of evidence required to prove abandonment varies with the circumstances, “[a]ffirmative acts rendering use or enjoyment of the servitude benefit extremely difficult, or unequivocal statements of intent coupled with actions inconsistent with continued existence of the servitude, should be required as a basis for finding abandonment.” Id.

¶10 When an easement has been granted by deed, acts indicating abandonment must decisively, conclusively and unequivocally establish the holder’s clear intent to abandon the easement. See Smith v. Muellner, 932 A.2d 382, 395 (Conn. 2007); Whipple v. Hatcher, 658 S.E.2d 585, 586 (Ga. 2008). By itself, non-use of an easement created by deed is insufficient to prove intent to abandon, regardless of the length of non-use. Smith, 932 A.2d at 394-95; Mueller v. Bohannon, 589 N.W.2d 852, 857-58 (Neb. 1999); Moyer v. Martin, 131 S.E. 859, 861 (W. Va. 1926) (“[I]t is universally held that mere nonuse[] of an easement by grant, however long, will not extinguish the right, unless otherwise provided by statute or by provision in the grant itself.”). The non-use must be coupled with acts or omissions evidencing the holder’s intent to abandon the easement. Mueller, 589 N.W.2d at 859.

Source: Scalia V. Green at
http://caselaw.findlaw.com/az-court-of-appeals/1583568.html

I think I have great evidence to prove abandonment-

Mainly that another easement was added without the community's knowledge

The county installed a drainage pipe right in the middle of the land - since it appeared abandoned- it was not in any map or survey.

Since that point it has caused the property to erode- so much so that it is at this time completely unusable without leveling, a sea wall, and some fill dirt.

Right now you can't even walk across the whole thing as the pipe has created a 12 foot drop in some places.

I have talked to the county to remedy this situation, since this easement was not on any surveys and they have agreed to move the pipe to one end, and I plan on repairing the damage.

So the destruction of the property by erosion caused by the pipe has made it completely unusable, and has been so for many years.

Kevin
See my 4:42pm post on 1/17.

Since you are a new owner, good luck proving your neighbor has never used the property in the past 30 years.