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

If one party breaka an easement what are our options

Started by JackS15 • 15 replies • 472 views

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

Create Free Account →

⚡ Takes 30 seconds

Already a member? Log in

JackS15 (Massachusetts)
Posts: 84
Posted:
We are one of three entties on an easement. One of the others was a vanacant lot that they purchased. They begand to build on that lot. We have a private way that prohibits construction vehicles on that road. The other enttie used it exclusively as a construction road even driving the wrong way several times a day. Our roads and sidey are now cracked. The construction company only wants to repair the bare minimum. What are our recoures?
https://smallpdf.com/shared#st=45c6376d-dc0f-46fa-8644-b9916cb73f5d&fn=Boiler+works+easement.pdf&ct=1607051522056&tl=share-document&rf=link
GeorgeS21 (Florida)
Posts: 3,808
Posted:
Is this in an HOA?
JackS15 (Massachusetts)
Posts: 84
Posted:
We live in a condo and have a trust.
CathyA3 (Ohio)
Posts: 6,299
Posted:
Who owns the street: individual home owners or the condo association? And what does the easement agreement say?
CathyA3 (Ohio)
Posts: 6,299
Posted:
OK, I looked at the easement agreement. As far as I can tell:

* The original owners of the two properties (Grantor and Grantee) agreed that Grantor should maintain the road in a serviceable condition, and if Grantor failed to do so, Grantee had the right to perform said maintenance after giving proper notice to Grantor (with costs shared 50-50).

* The agreement provisions were intended to be passed onto new owners of the two parcels.

* Unit owners of the condos are not responsible for this road maintenance.

* I think that the condos are on the parcel owned by Grantee.

I think that the condo association is likely to have some responsibilities (assuming they are now "Grantee") if whoever is now "Grantor" fails to adequately maintenance the road. But I wouldn't swear to any of this since I have no idea who the individual parties are, and what the history of the area is, and you kinda need to know that to understand exactly what this says.

OP should first ask his board about this. The potential expense should be properly budgeted for (and included in the reserve studies as well since road maintenance is a major expense).
JohnC46 (South Carolina)
Posts: 14,265
Posted:
Jack

Ar you in a high rise condo building? Is there an owners association?
JackS15 (Massachusetts)
Posts: 84
Posted:
Quote:
Posted By JohnC46 on 12/04/2020 10:57 AM
Jack

Ar you in a high rise condo building? Is there an owners association?

Yes it's 7 stores and a HOA
JohnC46 (South Carolina)
Posts: 14,265
Posted:
Jack

A few questions:

1. How many structures/entities are there on the Easement? As an example you are one structure/association but multi owners.
2. Are the other structures/entities like yours as in multi owners?
3. How many total owners are there?

As I see it the users of the easement are responsible for maintaining it. I would assume equal payments per owner, which could get tricky in itself. That said, I see two issues:

1. Will the construction company repairs be sufficient which you do not think they will be.
2. Can the entire repair cost be put upon the owner/entity that caused it?

Often an easement is owned by one entity that gives usage of such in perpetuity to others but is usually accompanied by some cost sharing mechanism.
JackS15 (Massachusetts)
Posts: 84
Posted:
Quote:
Posted By JohnC46 on 12/04/2020 2:46 PM
Jack

A few questions:

1. How many structures/entities are there on the Easement? As an example you are one structure/association but multi owners.
Correct multi owners. There are three entities. Trinity maintains it. We (carlton wharf) have mutual agreement to use it. The third entity hodge boiler works has also has access to it.
2. Are the other structures/entities like yours as in multi owners?
Trinity is a corporation. They rent the unit out. We (carlton Wharf) are all owner occupied. The third former boiler works
Company who purchased the land are creating all luxury condos
3. How many total owners are there?
Carlton wharf has 30 owners. No idea on other two corporationals.
As I see it the users of the easement are responsible for maintaining it. I would assume equal payments per owner, which could get tricky in itself. That said, I see two issues:

1. Will the construction company repairs be sufficient which you do not think they will be.
2. Can the entire repair cost be put upon the owner/entity that caused it?

Often an easement is owned by one entity that gives usage of such in perpetuity to others but is usually accompanied by some cost sharing mechanism.

JackS15 (Massachusetts)
Posts: 84
Posted:
1. Will the construction company repairs be sufficient which you do not think they will be.
They ruined the side walk they told us they will not repairs the cracks only the parts where it's been drove over so many times it's in pieces and smashed into the ground.
2. Can the entire repair cost be put upon the owner/entity that caused it?
This is what I am trying to find out. They broke the easement agreement by using the private way to contruct their building and our front entrance way as a staging area.
JohnC46 (South Carolina)
Posts: 14,265
Posted:
Jack

You say: They broke the easement agreement by using the private way to contruct their building and our front entrance way as a staging area.

What makes you think/believe they could not use the easement? Where they not doing a "job" for one of the entities that has an easement right of way?
JackS15 (Massachusetts)
Posts: 84
Posted:
Per the easement restrictions. It says "In no event shall the easement area be used for construction activities on the boiler works parcel, nor shall the area be used for the installation of utilities for the boiler works parcel.
JackS15 (Massachusetts)
Posts: 84
Posted:
See attached image
https://ibb.co/sFp2bv2
CathyA3 (Ohio)
Posts: 6,299
Posted:
If the easement agreement doesn't spell out penalties for violations of the agreement or address issues of excessive damage, the condo association will probably have to lawyer up (assuming it's on the parcel formerly owned by the Grantee referred to in the agreement).

The agreement does say that if the Grantor fails to maintain the road adequately, the Grantee may take the lead (with proper notice) and that the costs will be split 50-50 if this happens. But I assume that the condo association would feel that a 50-50 split is unjust if the majority of the damage was done by another party.

However, with damages like this, you always have the issue of proving who did what, and that can be difficult or impossible. Litigation of this sort can also get expensive, to the point where it would be cheaper to just go ahead and pay your 50% to repair the road.

(I know easement agreements are common, but I hate the things. My condo association is on the hook for 100% of the maintenance costs of a connector road that is owned by someone else and that is being beaten to pulp by large delivery trucks and random traffic funneling off the main highway nearby. Our developer threw us under the bus, and the agreement really toasts my Twinkies. I avoid thinking about it.)
JackS15 (Massachusetts)
Posts: 84
Posted:
So the developer is asking us to amend the easement in order to widen the street. They are saying there is a law that emergency vehicles need a specific amount of space to get through the Street.
My thoughts are why is this an issue now and not before. They still have not answered this question. Also fix the sidewalks including the cracks and we will.

🎯 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