Private Alleys: Paying for Improvements

Started by TomW21 • 8 replies • 836 views

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TomW21 (Louisiana)
Posts: 6

Posted:

My neighborhood has private alleys with rights of access and are defined as 'common areas' in the cc&r's. The alleys have opposing garages and the property lines fall in the middle of the private road. It is my understanding that the Association members are the dominant estate of the servitude of passage and the individual homeowner is the servient estate. All homeowners are automatic members of the HOA. Is it possible for a servient estate to also be part of a dominant estate? In other words, if the homeowner who's property is subject to a servitude where the private road is located but is also a member of the HOA which is (as I understand it) the dominant estate, would that make the homeowner the servient estate but also part of the dominant estate?

We have a homeowner who claims that the HOA has no right to require him to pay for improvements to the private road. I agree that since he is the servient estate that it is not his obligation, but since he is part of the dominant estate also, he must pay his portion of the HOA fees which include private road maintenance and improvements. I think of it as an, 'if a then b, if b then c' type of situation.

Would appreciate any thoughts/advice!

GenoS (Florida)
Posts: 4,276

Posted:

The association is an entity unto itself. Generally the homeowners don't own any part of it.

JanetB2 (Colorado)
Posts: 4,219

Posted:

Quote:

Posted By TomW21 on 06/14/2018 7:54 PM
My neighborhood has private alleys with rights of access and are defined as 'common areas' in the cc&r's. The alleys have opposing garages and the property lines fall in the middle of the private road. It is my understanding that the Association members are the dominant estate of the servitude of passage and the individual homeowner is the servient estate. All homeowners are automatic members of the HOA. Is it possible for a servient estate to also be part of a dominant estate? In other words, if the homeowner who's property is subject to a servitude where the private road is located but is also a member of the HOA which is (as I understand it) the dominant estate, would that make the homeowner the servient estate but also part of the dominant estate?

We have a homeowner who claims that the HOA has no right to require him to pay for improvements to the private road. I agree that since he is the servient estate that it is not his obligation, but since he is part of the dominant estate also, he must pay his portion of the HOA fees which include private road maintenance and improvements. I think of it as an, 'if a then b, if b then c' type of situation.

Would appreciate any thoughts/advice!

Tom ... your question is VERY confusing.

First you talk about alleys ... where you note they are “common areas’. If they are “common areas” then potentially they are on the HOA to maintain.

I am not sure what you are referencing when you note “servient estate” vs “dominant estate”. What are you considering servient and what are you considering dominant?

Regarding private road ... If the CCR’s which is a CONTRACT is attached to his property and if it notes that the road is Common Area ... then all members are responsible for maintaining that Common Area for the HOA.

TomW21 (Louisiana)
Posts: 6

Posted:

Those are the legal terms I looked up. When a property has a servitude of access on it, that property is the servient estate and the property to which it must grant access is the dominant estate. In this case (as I understand it) each individually owned piece of property which has alley way on it is the servient estate and all of the other properties in the neighborhood (as a group) are the dominant estates.

MelissaP1 (Alabama)
Posts: 13,836

Posted:

We are NOT lawyers here. Can you talk plain English? Sounds like you have alley's in the back of the homes to use for garbage pickup and access to parking to a garage? There is a plan to make improvements and you want to know who pays for it?

Considering a HOA/COA is ONLY funded by it's members for it's members, then you all need to contribute to paying for the project upon approval.

Former HOA President

JohnC46 (South Carolina)
Posts: 14,265

Posted:

Tom

I believe many of us here consider it common property and all owners share equally in its maintenance cost.

If it is that important to you then stop play lawyer and get a legal opinion.

JanetB2 (Colorado)
Posts: 4,219

Posted:

Quote:

Posted By TomW21 on 06/16/2018 12:30 PM
Those are the legal terms I looked up. When a property has a servitude of access on it, that property is the servient estate and the property to which it must grant access is the dominant estate. In this case (as I understand it) each individually owned piece of property which has alley way on it is the servient estate and all of the other properties in the neighborhood (as a group) are the dominant estates.

In an HOA virtually ALL properties have a servitude of access as noted on the Plat and most will be “utility access” or “common area property access”. My HOA has not only the utility easements, but also irrigation easements. The utility companies are responsible for the utility lines and my HOA is responsible for the irrigation supply to all properties. We are all situated on 2 to 15 acre lots with no common area property. My HOA is solely responsible for the irrigation supply lines. However, it was different in my last HOA where we also had “common area” essentially parks with grass, trees, and shrubs. My advice is don’t try to make it more complicated than it really is ...

BenA2 (Texas)
Posts: 1,273

Posted:

I think that the confusion comes from the CC&Rs calling it a common area. A common area is property that belongs to the association. Based on what you wrote, the alley is owned entirely by individuals since their property line goes to the center of the alley and the property owner on the other side owes the other half of that section of alley. Since all of the owners along the alley have to use the alley to access their garage, there is an easement. So, all of the owners along the alley own their little piece but the have a legal right to drive on the other owners' pieces of the alley.

I think you may be misunderstanding the servient vs dominant estate. My understanding is that if you own one of the properties in question, the part of the lot that is an easement (the alley) is the servient estate and the rest of your lot (that is not in an easement) is the dominant estate. Both the servient and dominant are owned by the same owner, you. No one else has any ownership of the servient or dominant but they do have a right of access to the servient (the easement).

Situations like this are not that uncommon when it comes to shared driveways. Each owner usually owns their section of the driveway, as opposed to owning it together.

The main point is that easements are part of the individual private properties. The people who have a right to use the easement do not have any ownership rights, only right of access. Therefore, the HOA does not own any part of it. So, I think the owner claiming the HOA has no right to require him to pay for improvements, may be right. However, anyone with rights to the easement could take him to court to compel him to pay his share.

All that being said,this is not a simple matter so I would consult with an attorney before doing anything.

KerryL1 (California)
Posts: 14,550

Posted:

I'd have to see the exact wording in your CC&Rs, Tom, about these alleys to try to respond. It may be that these alleys are exclusive use common areas (can't remember the other terms for this). A portion of each is owned by the home since the lot line comes to the middle of the alley. But the HOA has the right to make rules about the alleys and also must maintain them.

I think it's similar to our deeded parking spaces in our underground garage. I own mine, but others walk over it and the HOA has rules about them and also must maintain them.

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