A service of:
Community123.com
Professional websites for HOAs & condos, since 2004
🎁 1st year FREE for HOATalk members! →
← Return to Topics List

HOA Taking over Utility Easement

Started by VK • 18 replies • 1958 views

💬 Join us to post & get advice from 50,000 HOA & Condo leaders.

Create Free Account →

⚡ Takes 30 seconds

Already a member? Log in

VK (Michigan)
Posts: 7
Posted:
Hello,
I searched the forums and couldn't find this topic addressed. We currently have a drain easement and a pipeline easement on our property. The utilities were identified on our plat map and are within our property lines. Our HOA has determined they are going to put a public pathway on our property. The reason stated was they are entitled to do it because of the utility easement. I cannot find any legal documentation that gives the HOA the right to put a pathway on the utility easement. The Master Deed states the HOA can access the easement for purposes of maintaining the utility but nothing indicates they was to be a pathway. Do any HOA folks on here know if an HOA can just take over a utility easement and install a public pathway on it if the legal plat documents show the easement is in our property line? Are there any homeowners out here who have encountered a similar issue and may be able to offer any advice? Thank you.
MelissaP1 (Alabama)
Posts: 13,836
Posted:
Define "Public". Do you mean any person or is it for HOA membership? The reason I ask is because our HOA, you owned the lot the house sits on. Everything else is "Common" area. So you have "exclusive use" of that property but it was owned by the HOA. So a HOA member could walk across your "land" without trespassing. This arrangement helped with allowing lawncare access as we were responsible for providing lawncare.

We have a walkway nearby that runs along the sewage piping of the city. Guess you would call that a "utility". The city allows people to use that as a walkway for bikes and pedestrians. I would assume that means one could install a walkway near a utility easement. Atleast that is what it looks like to me when you walk that area.
Former HOA President
VK (Michigan)
Posts: 7
Posted:
I am not sure what the HOA means by public. I am guessing they mean for the general public as well as HOA members because there would no way to identify who is a resident and who is not as there is no gate or anything. The master deed identifies the HOA has access to the drain for repair and maintenance. There is no permission granted by the gas company in the master deed allowing the HOA to install a pathway.
VK (Michigan)
Posts: 7
Posted:
Also - the easements are on the property that the house sits on.
JohnC46 (South Carolina)
Posts: 14,265
Posted:
VK
It is not uncommon for a piece of property to have several easements. Easements are typically granted to utility companies and basically say you cannot deny them access to their easement even when on your property.

Typically easements will say there is no building allowed on or over the easement. If you ask the easement owner for permission to build on or over their easement, you will get a generic letter with no clear answer. In reality most ignore such and build as they desire.

Worst case if the easement owner needs to get at the easement they have the right to remove/destroy any obstruction. Now here comes the rub. Will they replace such? Generally they are under no obligation to do so but many will.

I have seen cases of them gently removing a fence and replacing it after. I have seen cases of them gently removing a fence but not replacing it after.

All of that said, if your HOA owns the easement they might could well place a walkway on it. If they do not own the easement, they are blowing smoke up your kilt.

DouglasK1 (Florida)
Posts: 2,046
Posted:
Don't take anything you read here, including this post, as legal advice. None of us are lawyers, or at least admit to be.

My understanding is that an easement is granted for particular purposes and does not give the holder carte blanche to do anything they want on the property. I would not think that a walking path is a valid use of a utility easement.

Unfortunately, I don't think you are going to get out of this without at least consulting with an attorney. If you are lucky, the attorney will write a stern letter the the board letting know you'll take legal action if needed, and the board will heed this and stop. If not, you need to weigh the costs of legal action. And of course, the attorney could be of the opinion that a walking path is a valid use.
Escaped former treasurer and director of a self managed association.
MarkM31 (Washington)
Posts: 494
Posted:
Quote:
Posted By JohnC46 on 05/16/2019 5:09 PM
, if your HOA owns the easement they might could well place a walkway on it. If they do not own the easement, they are blowing smoke up your kilt.


No one owns an easement. Holding an underground utility easement does not give the holder the roght to use the easement for anything other than the use and maintainence of an underground utility. The the HOA no, and call a lawyer if it goes further.
VK (Michigan)
Posts: 7
Posted:
Thank you everyone for your advice. Unfortunately, we have had to incur the expense of hiring an attorney yesterday. We are not looking forward to how much this will cost us in the long run. We haven't been able to find recorded plot description that grants the HOA use of the easement on our property as a pathway. The HOA is using the final developer site plan as their proof - which does show 3 sewer lines on the sewer site plan and no pathway easement.
RoyalP
Posts: 1,104
Posted:
Quote:
Posted By VK on 05/17/2019 6:18 AM
Thank you everyone for your advice. Unfortunately, we have had to incur the expense of hiring an attorney yesterday. We are not looking forward to how much this will cost us in the long run. We haven't been able to find recorded plot description that grants the HOA use of the easement on our property as a pathway. The HOA is using the final developer site plan as their proof - which does show 3 sewer lines on the sewer site plan and no pathway easement.

WE (you) have no need to find.

The HOA has the need to PROVIDE.

Ask your attorney to write and mail a 'cease and desist' letter.

The case should then be closed.
AugustinD
Posts: 5,144
Posted:
VK, many sites discuss whether an owner of a lot may {plant flowers; construct a fence; build a shed; more} above an underground utility for which another party has an easement for repair and maintenance of the utility. It appears the owner of the lot has the legal right to put almost anything above the utility (for which an easement exists), with the understanding that whatever is constructed above the underground utility may be legally torn up when repair and maintenance of the utility is needed. To me, this means that the HOA may not construct a pathway above the utility for which it has an easement. If they do, it is a trespass, and under Michigan Statute 600.2919, the trespasser may owe you three times the amount of actual damages. See http://legislature.mi.gov/doc.aspx?mcl-600-2919

If you are confident about the wording on the easement, then first, consider writing a polite letter to the HOA, saying something like the following:

Dear Green Acres HOA,

The HOA has an easement to "maintain and repair" the utilities under the ground of my lot as shown on Plat ________. My understanding is that this easement does not extend to constructing anything above the utilities. In fact, it is my understanding that, as a matter of property law, only I am permitted to build, construct, plant or similar above the utilities, as long as access for maintenance and repair by the HOA is still possible.

The HOA has stated its intent to construct a public pathway above the utilities. Would you please contact me as early as possible to explain what is the legal justification that permits the HOA to build this pathway?

Sincerely,

Jane Doe
Member, Green Acres HOA
#123 Green Apple Way

If the HOA is unresponsive or gives an unsatisfactory answer, report back.
RoyalP
Posts: 1,104
Posted:
good letter

imo: let your attorney send it on letterhead on your behalf
VK (Michigan)
Posts: 7
Posted:
Thank you. I am hopeful my attorney will contact me soon. I gave up communication with the HOA after 2 days of an E-mail merry-go-round and them not being willing to sit down and meet with me.
GenoS (Florida)
Posts: 4,276
Posted:
Quote:
Posted By DouglasK1 on 05/16/2019 7:26 PM
I would not think that a walking path is a valid use of a utility easement.

That was my first thought as well. We're currently having some discussions involving easements in my community so this is a timely discussion.
VK (Michigan)
Posts: 7
Posted:
From the laws I have found, the HOA is attempting to use the utility easement as an unintended purpose and it is illegal. The only way it would be legal for them to construct a pathway is if the utility recorded a plot description that expressly stated the HOA can construct a pathway on that easement.
JohnC46 (South Carolina)
Posts: 14,265
Posted:
VK

You say you currently have a drain easement and a pipeline easement on your property. Is this the pathway the HOA wants to use? Does your plot plan show who the Easement was Granted to such as So and So Gas Company?

My initial reaction is have an Attorney draw up a Cease and Desist letter to be sent to the HOA. Throw the ball back in their court. Ask the attorney if a copy of the letter should be sent to the Easement Owner.

In SC a Drainage Easement (one on my property) falls under a state agency. You would play hell getting them to approve a cross over it, nevermind a run along it pathway.
SueW6 (Michigan)
Posts: 814
Posted:
Why would the HOA want to put in a path? Path to where? To the lake?
VK (Michigan)
Posts: 7
Posted:
Yes the HOA is wanting to put a paver pathway on our property leading back to the flush drain for public access by residents and the public at-large because how would they determine who is or isn't a resident. The HOA is insisting they have an easement on our property which all legal recordings do not show. The HOA is stating the developer plans that show a pathway on our property. However, those plans are not recorded with the County or the local municipality. The plans on file do not show an HOA easement on our property either. The HOA has now decided they are going to pursue arbitration and said they will be notifying our neighbors that we are blocking access to the drain and the public space and they won't be maintaining it. The open space area has been accessed via the HOA's landscape easement at the end of the street for years. I am guessing maybe since the HOA took over possession from the developer. We have recently learned that our subdivision is a site condo not a typical housing development so now I am researching if that will have any implications on us. The most frustrating thing is the HOA never notified us as property owners about their planned intentions. The only discussion was a verbal discussion when we saw the HOA walking our property and we went out to ask what they were doing. The response was were getting someone in to clean out the cattails in the "pond."
SueW6 (Michigan)
Posts: 814
Posted:
See
Www.micondo.law

Look for info covering site condos vs subdivisions.
MarkM31 (Washington)
Posts: 494
Posted:
Quote:
Posted By VK on 05/20/2019 4:50 AM
The HOA is stating the developer plans that show a pathway on our property. However, those plans are not recorded with the County or the local municipality. The plans on file do not show an HOA easement on our property either

The only thing that likely matters is what is attached to your deed of record. If nothing appears on your deed, then the only easement they would have would be an easement of neccessity. Otherwise they have an underground utility easement, probably with right of maintainence.

Quote:
Posted By VK on 05/20/2019 4:50 AM
The HOA has now decided they are going to pursue arbitration and said they will be notifying our neighbors that we are blocking access to the drain and the public space and they won't be maintaining it.

Your lawyer should tell them to keep their yaps shut about such things.

Quote:
Posted By SueW6 on 05/20/2019 8:48 PM
See
Www.micondo.law

Look for info covering site condos vs subdivisions.

Probably not reaaly applicable. The OP said they own the lot, that is all that really matters. This is basic property law, it really has nothing to do with a HOA.

🎯 You've read this entire discussion

Join the conversation with 50,000 HOA & Condo Leaders:

  • ✓ Ask follow-up questions
  • ✓ Share your experience
  • ✓ Get expert advice
  • ✓ Access 350,000 discussions
Create Free Account →

⚡ Takes 30 seconds

Already a member? Log in here

Terms of Use and Privacy Statement