A service of:
Community123.com
Professional websites for HOAs & condos, since 2004
šŸŽ 1st year FREE for HOATalk members! ā†’
ā† Return to Topics List

Title insurance on common areas?

Started by TerriS6 ā€¢ 54 replies ā€¢ 426 views

šŸ’¬ Join us to post & get advice from 50,000 HOA & Condo leaders.

Create Free Account ā†’

āš” Takes 30 seconds

Already a member? Log in

TerriS6 (California)
Posts: 3,284
Posted:
Our common areas are owned by all members as undivided interests. When the express non-exclusive easement was granted by the board to a non-member property owner, without a vote of the membership, I'm wondering if the easement may have been void when created and that the title company may have some jurisdiction there.???
TimB4 (Tennessee)
Posts: 21,062
Posted:
Is this still over the easement within your development that was granted in the 1980s?

You're likely going to have to talk to an attorney versed in property law.

TerriS6 (California)
Posts: 3,284
Posted:
Quote:
Posted By TimB4 on 08/05/2023 3:30 PM
Is this still over the easement within your development that was granted in the 1980s?

You're likely going to have to talk to an attorney versed in property law.


Yes, thank you. I've already learned quite a bit about it. The intent of the parties is all in writing, that neighbor seeking easement wanted to farm land without trespassing and association wanted to prevent a housing development. But I suspect the easement itself was void when created since board didn't have authority from membership to encumber the common area with easement to non-member. And it seems title insurance shoukd cover that since interest in common area is attached to separate interest. Research needed.
TerriS6 (California)
Posts: 3,284
Posted:
The easement was granted in 1996.
TimB4 (Tennessee)
Posts: 21,062
Posted:
If I recall, the granting of an easement was part of a legal settlement.

Per your previous thread, you are not contesting the settlement easement. You are looking because "The question came up because the property where the easement is located is for sale and instead of agricultural use which is why the board granted the easement - to prevent housing development - its being marketed as housing development potential. "

As I posted earlier, the Association needs to speak to an attorney who will have access to the settlement paperwork, zoning info, PLATs and your governing documents.
It's best to have an answer to that question sooner then later as it will be easier to address the issue prior to the land being sold.

As was pointed out in the other thread, it's likely the easement will have to stay because it's been there for 25+ years.
Therefore, if the settlement paperwork didn't limit the land use, the Association might not have a stand to challenge the issue.
TimB4 (Tennessee)
Posts: 21,062
Posted:
One word of caution.

IF you are on the board, I would strongly recommend limiting any discussion of this issue on line.

The association has a potential legal issue over the easement and use of the land and you wouldn't want some innocent posting to derail the Associations position.

I suspect, your attorney would give you similar advice.
TerriS6 (California)
Posts: 3,284
Posted:
Quote:
Posted By TimB4 on 08/05/2023 4:08 PM
If I recall, the granting of an easement was part of a legal settlement.

Per your previous thread, you are not contesting the settlement easement. You are looking because "The question came up because the property where the easement is located is for sale and instead of agricultural use which is why the board granted the easement - to prevent housing development - its being marketed as housing development potential. "

As I posted earlier, the Association needs to speak to an attorney who will have access to the settlement paperwork, zoning info, PLATs and your governing documents.
It's best to have an answer to that question sooner then later as it will be easier to address the issue prior to the land being sold.

As was pointed out in the other thread, it's likely the easement will have to stay because it's been there for 25+ years.
Therefore, if the settlement paperwork didn't limit the land use, the Association might not have a stand to challenge the issue.

I agree.
I've never seen settlement paperwork but the easement and resolution limit the land use which could be a problem for any housing developer.
There are cases where an easement was declared void when recorded.
ElleN (Idaho)
Posts: 4,420
Posted:
Quote:
Posted By TerriS6 on 08/05/2023 3:24 PM
Our common areas are owned by all members as undivided interests. When the express non-exclusive easement was granted by the board to a non-member property owner, without a vote of the membership, I'm wondering if the easement may have been void when created and that the title company may have some jurisdiction there.???
A buyer of real estate purchases title insurance in case, down the road, covered defects in the title to the real estate are identified.

Suppose HOA Member Jones comes along and asserts that the easement the HOA granted to the Acme Corporation was, in fact, not lawfully granted and is void. Jones even gets the HOA board to agree with him. The HOA attorney writes the Acme Corp a letter, demanding that Acme agree that the easement no longer exists. Furthermore says the HOA attorney, if Acme still wants the easement, Acme will have to pay the HOA $3 million dollars.

The Acme corporation's powers-that-be contact the title insurer and ask: "Is this a defect? Does our title insurance cover it? Was this easement lawfully granted?"

The title insurer checks the county records and finds the easement was, by all appearances, properly recorded (as was mentioned in another thread). The recorded easement says the HOA corporation grants the easement to the Acme corporation, for such-and-such. The title insurer informs Acme corporation that by all appearances, the easement was lawful, and that, by checking county records way back when, the title insurer completed its due diligence on the matter.

Did the title insurer have a duty to confirm that the HOA corporation complied with its bylaws and declaration when granting this easement?

I doubt it.

The title insurer also comments to Acme that it remembers the HOA corporation and Acme corporation were about to go to court over the use of this road, when the two entities decided to settle, with the HOA corporation granting the easement. The Acme corporation's president says, oh yeah, Jane, the former president, mentioned this to me. Attorneys were involved in the settlement, of course.

The Acme corporation president calls its law firm. He gets an elderly attorney on the phone. The attorney roars: This was a part of the settlement. It is not your or my duty to check that the HOA board had the right to grant this easement. Let 'em sue.

Jones hears about Acme corp's position through the grapevine. Now member Jones ponders whether suing the HOA corporation might be the way to go. Jones knows the HOA is probably stuck with the easement, on account of the law on "prescriptive easements." Still Jones think someone owes him some restitution for some of his "interest" (the use of the road) being given away by the board, before he bought into the HOA, in violation of the declaration (he thinks).

Now Jones faces two facts: Before buying his lot, he knew the easement existed, because it was recorded with the county. If Jones did not like the easement, he should not have bought a home in this HOA. Also Jones bought the property several years ago. Laches may be a problem. On at least two levels, Jones acquiesced to the existence of the easement (so the courts might very well say).

How about a derivative suit, whereby Jones sues on behalf of the HOA corporation, because others (the board who granted the easement way back when, under threat of litigation) hurt the corporation. Might a court award the HOA corporation some money? Might the HOA's insurer pay this money, as part of the D&O insurance directors have for mistakes the directors make? Maybe. But I think the first words to Jones out of the insurer-provided attorney's mouth would once again be: You knew this easement existed when you bought. You had the covenants before you bought this real estate. You did not see an amendment to the plats, voted on by owners, recorded with the county. Now you are suing? Sir, the HOA's defense will be ___, ____, and ____, and we will be demanding that you pay the defense's attorney fees as well, pursuant to ___, ____ and ____.
TerriS6 (California)
Posts: 3,284
Posted:
Thank you, ElleN. Lots to digest here. I will study it tomorrow.
In the meantime, last week I called our neighborhood "historian" and he told me our neighbor, who was a lawyer at the time, wrote the easement himself.
The good part is the Resolution is very thorough even though there was no member vote to grant the easement.
One thing I found in CA easement cases is that if a property buyer is not made aware of even a legal easement, after close of escrow, the easement can't be enforced. Not aware of any opposing cases.
Thanks, again.
I really appreciate all the input.
ElleN (Idaho)
Posts: 4,420
Posted:
Quote:
Posted By TerriS6 on 08/05/2023 5:30 PM
Thank you, ElleN. Lots to digest here. I will study it tomorrow.
In the meantime, last week I called our neighborhood "historian" and he told me our neighbor, who was a lawyer at the time, wrote the easement himself.
The good part is the Resolution is very thorough even though there was no member vote to grant the easement.
One thing I found in CA easement cases is that if a property buyer is not made aware of even a legal easement, after close of escrow, the easement can't be enforced. Not aware of any opposing cases.
Are you talking about your possibly not being made aware of a legal easement (on HOA-owned common area, in which HOA members presumably have some interest) before purchase?

I do not know what you mean by "not made aware of." Are you suggesting you were not made aware of the easement at purchase? As I suggested above, the mere fact the easement is recorded may qualify as having made you as a buyer aware of it. Perhaps you are pondering whether this is something you want to pursue.

Whose title insurer were you thinking might maybe have some responsibility here? Yours? Or the title insurance the former developer has? Or someone else's?

I talk here about "slam dunk" cases now and then. Competent, experienced attorneys never talk like this, and rightly so. If, because of your reading of some case law, you are under the impression that because owners at your HOA were (supposedly) not made aware of the easement, then the easement on the common area (collectively owners by the owners via the corporation and so on) cannot be enforced, then even if this might be true, instantly I think you need to get back to the problem of prescriptive easement.

FWIW I think one of the main purposes of hiring an attorney is to get an objective take on things. People find it hard to remove biases that support their own position.

Also I cannot tell what your end game is here. Do you want to try to stop the (residential?) development? Do you want the easement to go away? Do you want compensation for possible loss of value of your property because of this easement?

I realize you may not respond. But I think this means the feedback you get here will have that much less value.
TerriS6 (California)
Posts: 3,284
Posted:
I meant for example if the yet to be determined buyer of the vineyard did not know about the limitations of the easement (farm maintenance not housing development pavement and traffic etc.,), then itā€™s possible the buyer would not be subject to the easement according to the cases Iā€™ve read.
TerriS6 (California)
Posts: 3,284
Posted:
No end game. This is all new. Just studying the situation.
TerriS6 (California)
Posts: 3,284
Posted:
After reading all, the goal is to protect association membersā€™ property rights and to make sure any development is done within the parameters of those rights.
MelissaP1 (Alabama)
Posts: 13,836
Posted:
Not what an HOA is or purpose but let's go with it ...
Former HOA President
TerriS6 (California)
Posts: 3,284
Posted:
https://research.ceb.com/secondary-sources/area/real-property/15ebll0000/cv9.44
ElleN (Idaho)
Posts: 4,420
Posted:
Quote:
Posted By TerriS6 on 08/05/2023 5:58 PM
I meant for example if the yet to be determined buyer of the vineyard did not know about the limitations of the easement (farm maintenance not housing development pavement and traffic etc.,),
Understood. Your comment above that the "good part is the Resolution is very thorough even though there was no member vote to grant the easement" got my attention, in a positive, hopeful way.

Quote:
Posted By TerriS6 on 08/05/2023 5:58 PM
then itā€™s possible the buyer would not be subject to the easement according to the cases Iā€™ve read.
I am going to re-write the above in a way that makes more sense to me. Please correct me if I mis-interpeted.

You're saying that, if the easement (with all its details) is not disclosed to the next buyer of this land (who may very well be a single family home, subdivision developer), then the buyer would not be able to enforce the use of the road as allowed in the easement? I am not sure this makes sense.

Or perhaps you mean that the buyer would end up having to be reminded that the easement is highly limited, and the easement precludes use of the road by the owners in a proposed, new subdivision? (Too bad; so sad; the buyer should have done her/his/its homework.)

In your HOA's favor, and just saying: The owner of the road (the HOA corporation, run for the benefit of owners) knows the easement exists. The HOA corporation knows the terms of the easement. The HOA has an attorney ready to swoop down if the buyer of the land dares to violate these terms.

Quote:
Posted By TerriS6
After reading all, the goal is to protect association membersā€™ property rights and to make sure any development is done within the parameters of those rights.
Makes sense to me.

Homeowners' associations go up against developers all the time.

Speaking as a layperson who has observed and participated in some of these battles (wars?), I would be thinking that I want any potential buyer (and the HOA board) to know well in advance that this easement, granted by the HOA, is not going to change; is not "for sale"; and can only be altered by a vote of the owners (so I continue to presume). Because as soon as some SFH subdivision developer acquires title to this land, this developer is going to have the very best law firms and most experienced land use attorneys go to bat for it. That's how much land development is worth. Said developer may very well enlist the support of the city/county land use department to make its claims.

As I trust you know, California still faces an ostensible "housing shortage." Building housing directly supports the economy. It is the express mission of nearly every city council and county commission to grow the economy, even if it kills us all due to the effects on the environment. Though I nod to the reality that every place I have lived would not have been possible but for housing developers.
TerriS6 (California)
Posts: 3,284
Posted:
"""You're saying that, if the easement (with all its details) is not disclosed to the next buyer of this land (who may very well be a single family home, subdivision developer), then the buyer would not be able to enforce the use of the road as allowed in the easement? I am not sure this makes sense. ""

No, I'm saying the HOA could not enforce any limitations to using the easement.
TerriS6 (California)
Posts: 3,284
Posted:
I have a letter to the listing agent ready to go.
ElleN (Idaho)
Posts: 4,420
Posted:
Quote:
Posted By TerriS6 on 08/06/2023 6:55 AM
"""You're saying that, if the easement (with all its details) is not disclosed to the next buyer of this land (who may very well be a single family home, subdivision developer), then the buyer would not be able to enforce the use of the road as allowed in the easement? I am not sure this makes sense. ""

No, I'm saying the HOA could not enforce any limitations to using the easement.
Above you posted:

Quote:
Posted By TerriS6 on 08/05/2023 5:30 PM

One thing I found in CA easement cases is that if a property buyer is not made aware of even a legal easement, after close of escrow, the easement can't be enforced. Not aware of any opposing cases.
I thought this applied where the easement is on the buyer's land. For example: Suppose Buyer Jones recently purchased a large home lot. Ten years before the seller had made a written agreement with neighbor Chang, permitting neighbor Chang to use the road on the seller's lot. The written agreement is not recorded with the county. The seller never disclosed the "easement" to Jones. This means Chang can no longer enforce the easement. Such is my take on the law of which you spoke.

In your HOA situation, the easement is on the HOA's land. If the upcoming buyer wants to use the HOA's roads in a way that violates the terms of the easement, the HOA can still enforce the easement and stop the violation.

You do not need my input, but FWIW: I consider it wise to move rather than to fight. Back in 1996, it sounds like the buyer of the land outgunned the HOA and bullied the HOA into a settlement about the roads. By my reading, this happens a lot. Nonprofit HOAs typically just do not have the funds to pay for the litigation that a developer will relentlessly pursue. Plus from what I have seen, city attorneys and county attorneys are happy to sit there, arms folded with stupid grins on their faces, and abet developers.
MelissaP1 (Alabama)
Posts: 13,836
Posted:
Let us make it clear what Terri goal is. They want the HOA to own the easement so when a developer buys the vineyard land they are forced to pay the HOA a boatload of money. Basically holding the land hostage so the HOA and it's members can make a "profit" from the sale.

You can keep tiptoeing around it all you want but there is no doubt Terri is in it for profit for a non profit HOA that has to pay taxes on that profit. Plus would not go to individual members...
Former HOA President
TerriS6 (California)
Posts: 3,284
Posted:
Quote:
Posted By MelissaP1 on 08/06/2023 8:20 AM
Let us make it clear what Terri goal is. They want the HOA to own the easement so when a developer buys the vineyard land they are forced to pay the HOA a boatload of money. Basically holding the land hostage so the HOA and it's members can make a "profit" from the sale.

You can keep tiptoeing around it all you want but there is no doubt Terri is in it for profit for a non profit HOA that has to pay taxes on that profit. Plus would not go to individual members...

The level of your ignorance is only exceeded by the level of your hatred. You can't own an easement on your own land. The HOA doesn't need an easement on its own land. If a developer buys the land and wants to pave the road, our membership will have to vote to approve or deny it. It is very common for developers to pay mitigation and development fees. Not sure if the membership will want to obstruct their only alternate egress in case of fire.
JohnC46 (South Carolina)
Posts: 14,265
Posted:
Terri

What is your end game concerning the easement?
MelissaP1 (Alabama)
Posts: 13,836
Posted:
Keep denying it. You want the HOA to own it to hold the new developers hostage...
Former HOA President
ElleN (Idaho)
Posts: 4,420
Posted:
Quote:
Posted By MelissaP1 on 08/06/2023 9:09 AM
You want the HOA to own it to hold the new developers hostage...
Huh? I suspect most owners at this HOA want to hold the new developers to the terms of the easement. A deal's a deal.
MelissaP1 (Alabama)
Posts: 13,836
Posted:
If the HOA is owner owned then what developer are they referring to? We know the current owner developer sued the HOA for those rights. Why then why we so concerned about the new developers when they do not own any HOA property? Nor will they be members.

Sounds like someone wants the easement back for a price ...
Former HOA President
TerriS6 (California)
Posts: 3,284
Posted:
Quote:
Posted By JohnC46 on 08/06/2023 8:56 AM
Terri

What is your end game concerning the easement?

Asked and answered but I will repeat since I'm asking for help.
1. That if the vineyard is sold to a housing developer, this time the membership gets to vote as required whether or not to allow any capital improvements to the easement.
2. That if the use is changed from agricultural to a more intensive use like housing development or commercial/industrial, that the association will defend the easement from being overburdened.
3. That if the membership approves a more intense use, the developer will pay a significant price for the privilege to help pay our total road maintenance costs.
4. To make sure our board doesn't give away our property rights again.
TerriS6 (California)
Posts: 3,284
Posted:
Posted By MelissaP1 on 08/06/2023 9:40 AM
If the HOA is owner owned then what developer are they referring to? We know the current owner developer sued the HOA for those rights. Why then why we so concerned about the new developers when they do not own any HOA property? Nor will they be members.

Sounds like someone wants the easement back for a price ...

Sigh...
Original developer sued HOA to get easement in 1984 but it never went to trial. In 1996 developer sold property to winery subject to their getting an easement from the HOA to use our road to maintain the vineyards they were going to plant. Board granted that easement to winery without a vote of the HOA members who own the road in undivided interests. Now the winery still owns the land which is all vineyards and they just put it up for sale. The property is being marketed as housing development potential so these are issues we will have to address. The HOA does not need or want or can it possess an easement on its own land. You don't need an easement to use your own land. It is only valuable to the owner of the vineyard land and whoever buys it.
MelissaP1 (Alabama)
Posts: 13,836
Posted:
The board did not give away property rights the first time. They were sued... The agreement was to grant the easement. Which to me indicates that the court agreed with the developer on the easement rights. So I doubt the HOA would win again
Former HOA President
TerriS6 (California)
Posts: 3,284
Posted:
Quote:
Posted By MelissaP1 on 08/06/2023 10:59 AM
The board did not give away property rights the first time. They were sued... The agreement was to grant the easement. Which to me indicates that the court agreed with the developer on the easement rights. So I doubt the HOA would win again

Stop pretending to know what you're talking about. The board claimed the officers had authority to grant the easement - they didn't - but they granted it anyway. The court had no participation in creating the easement.
ElleN (Idaho)
Posts: 4,420
Posted:
Quote:
Posted By MelissaP1 on 08/06/2023 9:40 AM
If the HOA is owner owned then what developer are they referring to? We know the current owner developer sued the HOA for those rights.
You have the facts all wrong. See above.
TerriS6 (California)
Posts: 3,284
Posted:
"The extent of a servitude is determined by the terms of the grant creating it. (Civ. Code, Ā§ 806.) [5] Where an easement is founded on a grant, only those interests expressed therein and necessary for its reasonable and proper enjoyment pass from the owner of the fee. (Pasadena v. California-Michigan etc. Co., supra."

Supporting the idea that conversion from vineyard to housing development would overburden the easement that was granted to allow farm maintenance and prevent a housing development. So the easement would be subject to re-negotiation.
MelissaP1 (Alabama)
Posts: 13,836
Posted:
I do not have my facts wrong. It was stated by the OP. The developer sued the HOA and it was part of the agreement or settlement.

Maybe check yours before tying yourself to a bandwagon.
Former HOA President
ElleN (Idaho)
Posts: 4,420
Posted:
Quote:
Posted By TerriS6 on 08/06/2023 2:17 PM
"The extent of a servitude is determined by the terms of the grant creating it. (Civ. Code, Ā§ 806.) [5] Where an easement is founded on a grant, only those interests expressed therein and necessary for its reasonable and proper enjoyment pass from the owner of the fee. (Pasadena v. California-Michigan etc. Co., supra."

Supporting the idea that conversion from vineyard to housing development would overburden the easement that was granted to allow farm maintenance and prevent a housing development. So the easement would be subject to re-negotiation.
Do the terms of the "grant" expressly refer to the easement serving solely the maintenance needs of the vineyards, and otherwise, serving the HOA members?
TerriS6 (California)
Posts: 3,284
Posted:
Quote:
Posted By ElleN on 08/06/2023 3:05 PM
Posted By TerriS6 on 08/06/2023 2:17 PM
"The extent of a servitude is determined by the terms of the grant creating it. (Civ. Code, Ā§ 806.) [5] Where an easement is founded on a grant, only those interests expressed therein and necessary for its reasonable and proper enjoyment pass from the owner of the fee. (Pasadena v. California-Michigan etc. Co., supra."

Supporting the idea that conversion from vineyard to housing development would overburden the easement that was granted to allow farm maintenance and prevent a housing development. So the easement would be subject to re-negotiation.
Do the terms of the "grant" expressly refer to the easement serving solely the maintenance needs of the vineyards, and otherwise, serving the HOA members?

Yes.
ElleN (Idaho)
Posts: 4,420
Posted:
Great.

I hope the HOA attorney sends the seller a letter warning him about misleading buyers.
TerriS6 (California)
Posts: 3,284
Posted:
Quote:
Posted By ElleN on 08/06/2023 3:18 PM
Great.

I hope the HOA attorney sends the seller a letter warning him about misleading buyers.

Someone will have to find a backbone and mail it to the board.
TerriS6 (California)
Posts: 3,284
Posted:
Funny how one can read something dozens of times without seeing what's there. Our Declaration states "The power to mortgage, encumber, or otherwise dispose of all property, real or personal, of the association will require a majority vote which excludes all votes of the Declarant or his successor in interest."

Proving the board never had authority to grant the easement to the vineyard owner and establishing anything done there in the future must have a vote of the membership.
MelissaP1 (Alabama)
Posts: 13,836
Posted:
Wasn't the HOA still developer owned at that time? If so, then there would been no membership vote or board.
Former HOA President
TerriS6 (California)
Posts: 3,284
Posted:
Quote:
Posted By MelissaP1 on 08/07/2023 7:07 AM
Wasn't the HOA still developer owned at that time? If so, then there would been no membership vote or board.

No. Otherwise the easement would have been granted to the developer instead of the vineyard owner.
ElleN (Idaho)
Posts: 4,420
Posted:
Quote:
Posted By TerriS6 on 08/07/2023 6:34 AM
Funny how one can read something dozens of times without seeing what's there. Our Declaration states "The power to mortgage, encumber, or otherwise dispose of all property, real or personal, of the association will require a majority vote which excludes all votes of the Declarant or his successor in interest."
I had to look up the meanings of "encumber" and "encumbrance." Yes, an easement is one example of an encumbrance. (Terri knows this already. I am 'just saying.')
MelissaP1 (Alabama)
Posts: 13,836
Posted:
I am so confused. I thought the original issue was the developer forgot to give themselves access to a part of the HOA land. They sued the HOA for it. So is the developer who sued for those rights and won the same as the vineyard owner?

Are you still talking the hypothetical developer who may buy the land in an unknown future?

Former HOA President
TerriS6 (California)
Posts: 3,284
Posted:
Quote:
Posted By MelissaP1 on 08/07/2023 8:04 AM
I am so confused. I thought the original issue was the developer forgot to give themselves access to a part of the HOA land. They sued the HOA for it. So is the developer who sued for those rights and won the same as the vineyard owner?

Are you still talking the hypothetical developer who may buy the land in an unknown future?


Original developer had big parcel remaining. One of our roads traversed his parcel. He forgot to reserve to himself an easement so he could use our road. So he sued us and we fought it. Nothing happened for 10 years until the vineyard owner came along and said they'd buy the parcel if we would grant the easement. So because our board wanted to see a vineyard instead of a housing development, it granted the easement for the purpose of vineyard maintenance (in 1996). Now the vineyard owner has listed the property for sale for several million dollars and is advertising housing development potential. It is zoned Ag but there is a planned development overlay so it could be Ag, housing, or commercial depending on what the local agencies allow. I think water is the main issue.
ElleN (Idaho)
Posts: 4,420
Posted:
Quote:
Posted By TerriS6 on 08/07/2023 8:17 AM
Original developer had big parcel remaining. One of our roads traversed his parcel. He forgot to reserve to himself an easement so he could use our road.
I am seeking clarification (for this interesting situation). So a snake-like strip of land traverses this parcel (currently having a vineyard on it)? Is the strip of land titled to the HOA corporation? Does the HOA corporation pay property taxes on this strip of land?

Quote:
Posted By TerriS6 on 08/07/2023 8:17 AM
Now the vineyard owner has listed the property for sale for several million dollars and is advertising housing development potential.
"Potential." Yeah right. I think this is a dog whistle for, "If any buyer has a big enough law firm on retainer, the chances of bullying the city, county and adjacent land owners to allowing subdivision development are good."

Quote:
Posted By TerriS6 on 08/07/2023 8:17 AM
It is zoned Ag but there is a planned development overlay so it could be Ag, housing, or commercial depending on what the local agencies allow. I think water is the main issue.
For all who oppose a new subdivision, I predict the local agencies will quickly, and understandably, join forces with the buyer (all the while pretending to be on the side of proper, safe land development) and become one of the enemies.
TerriS6 (California)
Posts: 3,284
Posted:
Quote:
Posted By ElleN on 08/07/2023 9:05 AM
Posted By TerriS6 on 08/07/2023 8:17 AM
Original developer had big parcel remaining. One of our roads traversed his parcel. He forgot to reserve to himself an easement so he could use our road.
I am seeking clarification (for this interesting situation). So a snake-like strip of land traverses this parcel (currently having a vineyard on it)? Is the strip of land titled to the HOA corporation? Does the HOA corporation pay property taxes on this strip of land?

Quote:
Posted By TerriS6 on 08/07/2023 8:17 AM
Now the vineyard owner has listed the property for sale for several million dollars and is advertising housing development potential.
"Potential." Yeah right. I think this is a dog whistle for, "If any buyer has a big enough law firm on retainer, the chances of bullying the city, county and adjacent land owners to allowing subdivision development are good."

Quote:
Posted By TerriS6 on 08/07/2023 8:17 AM
It is zoned Ag but there is a planned development overlay so it could be Ag, housing, or commercial depending on what the local agencies allow. I think water is the main issue.
For all who oppose a new subdivision, I predict the local agencies will quickly, and understandably, join forces with the buyer (all the while pretending to be on the side of proper, safe land development) and become one of the enemies.

The road is mostly straight. The easement is 60' wide.
The roads are not separate parcels; they are appurtenant to each separate interest. The association/corporation owns no real estate and pays no property tax.
I think most cities/counties like development.
Having been a planning commissioner, I can agree with your last comment.
ElleN (Idaho)
Posts: 4,420
Posted:
Thank you.

I am still trying to get things straight. Legally, is the vineyard owner the "grantor" of the easement? If so, some of my terminology above (and more) is way off.
TerriS6 (California)
Posts: 3,284
Posted:
Quote:
Posted By ElleN on 08/07/2023 9:57 AM
Thank you.

I am still trying to get things straight. Legally, is the vineyard owner the "grantor" of the easement? If so, some of my terminology above (and more) is way off.

No. Vineyard owner is Grantee or dominant tenement. Our road is servient tenement.
ElleN (Idaho)
Posts: 4,420
Posted:
Quote:
Posted By TerriS6 on 08/07/2023 6:34 AM
Our Declaration states "The power to mortgage, encumber, or otherwise dispose of all property, real or personal, of the association will require a majority vote which excludes all votes of the Declarant or his successor in interest."
You posted above that the "association/corporation owns no real estate." I gather you believe that this easement is real property belonging to the association. I think the easement is at least a "real property interest." But so far for California, I cannot quite convince myself that the easement itself is "real property."

In the law of real property, can there be an encumbrance on an encumbrance? Or does the original encumbrance just change to an encumbrance with different terms?

Just pondering.
TerriS6 (California)
Posts: 3,284
Posted:
Quote:
Posted By ElleN on 08/07/2023 1:20 PM
Posted By TerriS6 on 08/07/2023 6:34 AM
Our Declaration states "The power to mortgage, encumber, or otherwise dispose of all property, real or personal, of the association will require a majority vote which excludes all votes of the Declarant or his successor in interest."
You posted above that the "association/corporation owns no real estate." I gather you believe that this easement is real property belonging to the association. I think the easement is at least a "real property interest." But so far for California, I cannot quite convince myself that the easement itself is "real property."

In the law of real property, can there be an encumbrance on an encumbrance? Or does the original encumbrance just change to an encumbrance with different terms?

Just pondering.

No, the easement is not real property. It is an encumbrance on real property.
ElleN (Idaho)
Posts: 4,420
Posted:
Quote:
Posted By TerriS6 on 08/07/2023 6:34 AM
Our Declaration states "The power to mortgage, encumber, or otherwise dispose of all property, real or personal, of the association will require a majority vote which excludes all votes of the Declarant or his successor in interest."

Proving the board never had authority to grant the easement to the vineyard owner and establishing anything done there in the future must have a vote of the membership.
In your most recent post, you say the easement is not "real property" of the association. The easement is also not "personal property." Then per the covenant above, it seems to me a majority vote of the owners is not required to change the terms of the easement. It appears to me the board does have the power to agree to the terms of an easement or change the terms of an easement. This is entirely because none of the land here is the HOA's land.
MelissaP1 (Alabama)
Posts: 13,836
Posted:
I agree with you Ellen. Just Terri seems to be on a fishing expedition for lawsuit grounds...
Former HOA President

šŸŽÆ You've read this entire discussion

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

  • āœ“ Ask follow-up questions
  • āœ“ Share your experience
  • āœ“ Get expert advice
  • āœ“ Access 350,000 discussions
Create Free Account ā†’

āš” Takes 30 seconds

Already a member? Log in here

Terms of Use and Privacy Statement