Road association overreach

The back ground

Article III of our covenants is a Road Agreement. First it states a description of the road Schedule "B" (basically the points on the different property plats that have the road go through them and a 33 foot easement on either side of center line of the road). Than the agreement states the declarant hereby establishes and declare that all owners of any portion of the property described Schedule "A" (this is the description that describes all the properties in the development as a whole) are granted and shall have and enjoy a nonexclusive and mutual, permanent and perpetual easement for the purpose of ingress and egress over and across the real property described on Schedule "B". Declarant reserve the right to include a grant of said easement for the purpose of ingress and egress in any conveyance of any part or parts of the real property described in Schedule "A" made by Declarant.

It goes on to say that this agreement is to establish a mutual obligation upon the property described in Schedule "A" for
a. snow removal
b. road lighting establishment, repair and maintenance
c. road sign erection and maintenance
d. procurement and maintenance of general liability insurance
e. maintenance, upkeep and repair of road or roads, or any extension thereof.

Some feel that the road belongs to the association and the 33 feet on either side of center line also. Meaning they can do whatever they want within it and the actual property owner has no claim to it anymore. Case in point they have posted signs along the road with out talking to the owner of the property. they also put in a welcoming garden on the side of the road with out talking to the property owner. It was discussed that a tree on this same property owners property was a safety hazard and that the association could cut it down without talking to or informing the owner of said property.

I do not see that this agreement gives the association any of these powers. Is this correct?

Naomi,

Several things of note:

1. The road easements are dedicated by means of a recorded covenant. Iowa law requires that covenants be renewed every 21 years, otherwise they become void. What happens to the easements if the covenants expire? (Had the easements been more properly recorded as easements, rather than covenants, this question might not arise.) I have no answer to this question and would suggest consulting with an attorney before taking any further action.

2. My developer recorded road easements around the perimeters of my 40-acre parcel. My research indicates that "non-exclusive ingress and egress" makes them public roads.

3. My research also indicates that anyone may make any improvements to the easement consistent with its use as a public road; that includes removing any barriers such as fences and trees. This does not require the permission or cooperation of the actual property owner; he gave permission already by recording the easement.

4. An easement does not convey title; your association owns no real estate.

5. Common law holds that those who use a road must pay for its upkeep and may be compelled by court order to do so. An association is a useful means of creating an orderly method for maintaining the roads and for users to pay their share. Without the association you would have the potential for each and every owner to sue each and every other owner to force a contribution.

NaomiE(Iowa)

1- The wording you provided above does not in detail enough specify the meaning of "ingress and egress" - ie mere passing through - which is the benefit authorized jointly to all 9 properties on Schedule A.

But it DOES show what all those 9 'covenantee' / benefit-enjoying properties jointly in Schedule A, are obligated to do. This presumably applies to the 9 sets of Schedule B individual roadside strips of 'covenantor' ( emburdened )individual properties. Those Schedule A obligations - howsoever imprecise - can safely be presumed to be authorized.

But whether adjacent tree-cutting, BurmaShave signs, gardens can be umbrella'd under "ingress/egress/ performing obligations" . . . ?

Might take a court to decide item by item. . . .

2 - LarryB13 dug up - at your other topic - a 2012 Iowa Court of Appeals judgment striking down covenants improperly preserved & thus killed MRTA-style by a 21 year statutory sunset on unpreserved covenants ( Chipman's HOA v Carney 2012 ).

If your Road Agreement Article 3 contains the wording you supplied, then it may some day run afoul not only of such 21 year 'marketable record' effect but also the widespread unenforceability or precariousness of "perpetuities".

( The Declarant cites " . . . a nonexclusive and mutual, permanent and PERPETUAL easement . . ." )

Bottom line however would be that all 9 property owners gotta have access/won't rock the boat about preserving "ingress & egress".

My question here is how far can the road association go in its jurisdiction. Meaning some seem to think the nonexclusive ingress egress easement gives the association right to remove things that are not impeding ingress egress as in this tree and place things as in signs or welcoming gardens inside that 33 feet on either side of the road without speaking to the property owner. Some wanted to pull a fence out on someones property because it may have been inside that 33 feet. It was not impeding the ingress egress of the road. This fence was not one the owner had placed there is was a field fence left here when the developer bought the land from the farmer.

Is your Association incorporated?

If not, this type of thing is the exact reason to be incorporated.

NaomiE (Iowa) :

"As built" many stretches of these roads may be partially or totally outside their monumented survey boundaries, that is IF any such boundaries were even surveyed at all. The apparent "centre line" may not literally mark the point where the private strips intersect.

In one outrageous dispute in my jurisdiction, a cheapskate developer in 1985 saved mere couple of hundred dollars by paying for only half the survey pins needed to properly identify (on the ground) a private road through tough hilly terrain. Flash forward a quarter century when physical battles erupted (over trespassing vehicles following the as-built road unlawfully outside the actual lawful boundary ) before police were able to calm things. Litigation over the road trespass only ended when Canada's Supreme Court refused to hear an appeal of a lower court's ordering a correction to accommodate the trespassers.

A further not uncommon scenario I have seen, is that pragmatically the visible road bed itself slowly gets re-aligned to follow the most efficient for driving & maintaining. Visible centre lines might end up God knows where . . .

I found that we are incorporated. Why does this matter? I don't understand the difference.

NaomiE(Iowa):

1 - Unless your research includes direct or indirect access to a real property title registry database, - and subsequently to examining incorporation documents themselves - then whatever you have latest concluded may be NO BETTER NOR WORSE than the skillsets of anyone who tells you who owns & insures the common road.

2- Lacking incorporation - or any other process your jurisdiction may provide to give contracting & ownership & insuring powers etc eg Letters Patent or charters etc - to a group of several unrelated individuals, the ownership sharers own etc by a default that may usually be "tenancy in common".

Tom, Dick & Harriet - unincorporated - own the farm. The unincorporated tenancy in common lacks legal capacity to own nor insure nor shelter its principal/co-owners.
Their PERSONAL civil liability default might be joint & several; their victims can likely chose to recover court awards solely against whomever has the deepest convenient pocket.

A commitment by one in the name of the tenancy in common, MIGHT bind all the others.

This is NOT an exhaustive list of how this whole issue works. Your jurisdiction may differ in how it treats this. So you should hire & rely on competent, local, insured, legal professional help.

3 - It would be worth your while to re-read some of the comments at your other topic : “Covenants but no HOA” http://www.hoatalk.com/Forum/tabid/55/forumid/1/postid/208897/view/topic/Default.aspx

The incorporation issue frequently gets addressed elsewhere eg another current roads topic FredL1 Col “used roads” http://www.hoatalk.com/Forum/tabid/55/forumid/1/postid/209154/view/topic/Default.aspx

Naomi,

Others have explained the reason for incorporation.

Just as important as being incorporated, it's also important for the Association to maintain their corporate status. Maintaining corporate status is typically a simple matter of filing paperwork annually with the commission and paying a small fee.

Jeff provided the link for you to verify your Associations corporate status.

If you were incorporated, the individual should have only sent the cease and desist order to the Association. If the corporation status lapsed, the attorney was correct to send it to everyone (as there is no corporate shield). Of course, sending notice to everyone may have simply been a scare tactic.

Your group probably falls under Iowa's Unincorporated Nonprofit Association Act, which gives you many of the protections and rights of an incorporated association.

Here is one link with some info:

https://bradleyriley.com/changes-for-unincorporated-associations/

Easements are easements. Ours are registered with the county so they would stay in place no matter what.