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ThomasM25 (Colorado)
Posts: 3
Posted:
Old subdivision. 6 (of 70) houses share a private drive that is set up as a Limited Common Area for those houses in the Decs. Other subdivision residents have been using the private drive to access Forest Service land. There is a separate easement for Forest Service access, but it is not as convenient to use.

Multiple years ago, one of the 6 LCA owners said in the annual meeting that is OK for the rest of the subdivision to use the drive.

The HOA is now saying that this access is valid because of the word “invitees” is included in the section of the declarations below.

“Section 2.8 Delegation of Use. Any Owner may delegate, in accordance with the Bylaws, his or her rights of enjoyment to any Limited Common Area, Private Driveway Easement, and Parking Easements appurtenant to his or her Lot or Townhome Unit to the members of his or her family, invitees, tenants, or contract purchasers of his or her Lot or Townhome Unit."

Does this sound right? By this logic, it seems like any owner could make any LCA “public” by just posting in the paper inviting people to use it.

SheliaH (Indiana)
Posts: 6,964
Posted:
I wouldn't have taken stock in what this homeowner said because (1) it wasn't in writing and (2) there was no indication he or she consulted with the remaining 5 homeowners to confirm it was ok. Then the board could have consulted with the association attorney to iron out the details. Which is why you probably can't make a limited common area public by simply announcing it at a meeting, posting a notice in the newspaper or anything else.

That said, it's not a good idea to get legal advice on specific legal issues on the internet - if you're one of the 6 homeowners, talk to the board about consulting the association attorney. I would think maintenance would be an issue if dozens of people use the private drive, so unless the association is willing to pick up the extra costs, perhaps something can be done to make the other easement more accessible. If people don't think that's as convenient, they'll just have to learn to live with it because it's not like there's NO access to the forest service area.

If it is not right do not do it; if it is not true do not say it. Marcus Aurelius
ThomasM25 (Colorado)
Posts: 3
Posted:
Thanks. I understand that advice here is free, and you get what you pay for. The sounding board is useful anyway. In reality I don’t care if people use the drive. The topic came up in regard to questions of liability (think snow removal). That one is pretty clear in CO common law so now really just pondering the access question.
SheliaH (Indiana)
Posts: 6,964
Posted:
Actually the liability issue is a good point and something that the association attorney SHOULD be asked about. I believe limited common area could mean both the association and individual homeowners would be responsible for that area - check your documents to see what they say. he perhaps ask the association insurance company how they'd look at this, not to mention your own, so both of you can reduce liability.

If it is not right do not do it; if it is not true do not say it. Marcus Aurelius
DouglasK1 (Florida)
Posts: 2,046
Posted:
Based on the "invitee" clause, it seems to me that any of the owners on the street can "invite" anyone they want to use the street. If a homeowner gives a blanket invite, and is willing to publicly affirm ( or even testify in court) that a user of the street is "invited" then I think it would be an uphill battle to bar those users.

Escaped former treasurer and director of a self managed association.
CathyA3 (Ohio)
Posts: 6,299
Posted:
I second Sheila's comment about liability insurance. Use of LCAs are generally limited to owners of property that adjoin that particular area and are insured accordingly. "Invitee" is usually defined as a guest, delivery person, or service provider - it doesn't mean the entire community. So you're likely underinsured.

In addition, in order to open the area to the community, the LCA would need to be redefined as Common Area and insured accordingly. Your CC&Rs would need to be amended to reflect this change - and this change would need to be voted on and approved by the entire membership, with the approved amendment recorded with the county.

Amending the CC&Rs is a legal process, and many governing docs/state laws require approval by a super-majority of owners (eg. 67% or 75%). In my part of the world it costs around $1000 for the legal work for one amendment, plus the expense associated with voting. The expense is the same whether the amendment passes or fails, so you don't want to waste your time on something that is unlikely to be approved.

On the down side, if you don't redefine the LCA as CA, you'll have the issue of enforcement if people "trespass".

Nothing is easy or simple or fast in HOA-land...
ND (PA)
Posts: 792
Posted:
I think a “limited common element” is generally defined as “a portion of the common elements allocated . . . for the exclusive use of one or more but fewer than all of the units.”

What has been done by essentially inviting the rest of the subdivision to utilize the private drive is in conflict with this definition . . . specifically the "fewer than all of the units" part.

Also, in my opinion . . . I feel that the intent of the word "invitees" in the HOA's docs is intended to mean invitees to a homeowner's individual home/lot via the shared drive and not invited to use the shared drive as anyone sees fit.

Finally, and logically speaking . . . in my opinion, an element that is intended for the exclusive use by only a certain number of members should only be more largely shared with others if all of those exclusive-use members are in agreement with that sharing or the owner of that element (the HOA) appropriately allows something different.

And I definitely agree with the liability issue/topic that others have mentioned.
GeorgeS21 (Florida)
Posts: 3,808
Posted:
I believe Douglas' comment to be a bit broad.
JohnC46 (South Carolina)
Posts: 14,265
Posted:
As said by another poster: Also, in my opinion . . . I feel that the intent of the word "invitees" in the HOA's docs is intended to mean invitees to a homeowner's individual home/lot via the shared drive and not invited to use the shared drive as anyone sees fit.
I agree with this.
CathyA3 (Ohio)
Posts: 6,299
Posted:
Another item I thought of: what do the CC&Rs say about who is responsible for maintenance of the Limited Common Elements?

In my (condo) community, it's the owner who is entitled to exclusive use, not the association. If the OP's CC&Rs are similar, the owners of those adjoining lots aren't going to want to pay for additional wear and tear for something that benefits others in the community at the owners' expense.
ThomasM25 (Colorado)
Posts: 3
Posted:
Thanks guys. CC&Rs say that maintenance and snow removal is the responsibility of the owners that live on the private drive. That certainly complicates the liability issue. I was more comfortable with the liability part after reading this article.

https://www.cp2law.com/wp-content/uploads/2016/05/Snowy_sidewalks_come_with_liability_concerns_-_DWJ.pdf

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