Defunct HOA

McA (Colorado)
Posts: 11

Posted:

The backstory: We live on a street with 11 homes. There are no amenities and no common areas. The HOA was formed by the owners of the original land when it was divided into 9 plots. They no longer live on the street, and one is deceased. The majority of the covenants relate to an "architectural control committee" for the purpose of making sure the homes conformed to their standards. This was between 1989 and 1993 when the last plot was built. We were unaware we lived in a covenant community and had never seen the declaration. At no time were any dues paid, committees convened, or any meetings had. There is a n 8'utility easement between my home and my neighbor. It is to access a trail system. Prior to our taking ownership of the home, the neighbors built a fence excluding the gate to the trail. They have essentially abandoned and forfeit by adverse possession the small piece of property as it has been fenced out of their yard. To access the trail system, neighbors must come up our driveway to the gate as the previous owners have planted trees along the easement. For safety reasons, and without getting into details, we have removed the gate and fenced in our property which now blocks THIS access to the trail system. All the neighbors have other access to the trail system with minimal effort. It seems to us that the covenants are defunct. We have lived in our house for 18 years, and have never paid dues, attended a meeting, or had any dealings with any committee of any sort.

The declaration: (in part)
Article : No easements shall be fenced except along the edge (I am within this edge and did it with a permit from the city)
Article: Residents of the subdivision shall have access to the trail along the 8' easement between lots 8 and 9
Final paragraph: In the event the architectural control committee fails to approve or disapprove within 30 days after plans have been submitted to them. The approval will not be required and there will be deemed to have been full compliance with the related covenants.

The issue: One neighbor has suddenly decided he wants to access the trail system via my driveway and wants us to put a gate back or give him access to the private gate we put in which would mean he has to cross across not only the driveway, but part of our grass lawn. The fence has been erected for almost two years. He is claiming that without the access his house has depreciated in value as that is a "big selling point" and "the only reason we bought this house."
The covenants are "live" and registered with the county clerk.

The questions: Does the neighbor have the right to sue me or take me to court? And if so, would he win? Am I not within my rights according to the covenants? What can I do to stop the neighbor from pursuing this? I've explained our concerns about the access, and our safety concerns and he doesn't care.

Thank you for reading. I know it's long.

TerriS6 (California)
Posts: 3,284

Posted:

In CA, there must be a common area to be considered a community interest development. If there is no common area, there is no HOA and no power to enforce covenants.

To protect your property from trespassers, your state laws may require particular signage.

ElleN (Idaho)
Posts: 4,420

Posted:

Quote:

Posted By McA on 10/16/2023 7:14 PM
We were unaware we lived in a covenant community and had never seen the declaration.

You wrote further down that the covenants are recorded with the county. This means the probability is near 100% that a court would say you had proper notice of the covenants when you bought the home.

Quote:

Posted By McA on 10/16/2023 7:14 PM
There is a n 8'utility easement between my home and my neighbor. It is to access a trail system.

I cannot parse the above. For now I will assume that the covenants say there is an easement that, for one thing, legally allows all HOA members to access the trail system without fear of being charged with trespass.

Quote:

Posted By McA on 10/16/2023 7:14 PM
Prior to our taking ownership of the home, the neighbors built a fence excluding the gate to the trail. They have essentially abandoned and forfeit by adverse possession the small piece of property as it has been fenced out of their yard.

You are making an enormous legal assumption here. I would never assume adverse possession has taken place. Adverse possession depends on a lot of things.

Quote:

Posted By McA on 10/16/2023 7:14 PM
To access the trail system, neighbors must come up our driveway to the gate as the previous owners have planted trees along the easement. For safety reasons, and without getting into details, we have removed the gate and fenced in our property which now blocks THIS access to the trail system. All the neighbors have other access to the trail system with minimal effort. It seems to us that the covenants are defunct.

This is unlikely, IMO.

Covenants can be abandoned, but I am not seeing that this situation meets the general requirements for abandonment.

Quote:

Posted By McA on 10/16/2023 7:14 PM
We have lived in our house for 18 years, and have never paid dues, attended a meeting, or had any dealings with any committee of any sort.

This is irrelevant.

The courts see covenants as contractual terms. These terms do not just vanish on account of say dis-use.

It's hard to picture exactly what is going on physically here. All I can say is that my first blush impression is that those who want the covenants respected are probably in their rights. In court, I like their chances better than I like yours.

You absolutely will have to lawyer up and get a real estate attorney's opinion here. And it will not be cheap.

What is most important, in my rather extensive experience personally and with others: Avoid court. Settle this amicably. Because if the parties here go to court, pretty soon it will not be your neighbors who are the enemy. Instead the enemy will become the legal system.

McA (Colorado)
Posts: 11

Posted:

We purchased the house in foreclosure, and were never given a copy of the covenants. We had never seen them until 3 weeks ago.
We don't want to charge anyone with trespassing. We just don't want people walking down our driveway. People have littered, left dog feces, verbally threatened and cursed at my wife.
We also don't want the tiny piece of land via adverse possession. We would love to fence it back to them. They abandoned it over 20 years ago. They don't want it as it would mean the gate is via their driveway.
There are two other easier and more convenient ways to access the trail system, I assure you. All 10 other neighbors have been using them for the last 2 years since we erected the fence.
We tried to reason with him explaining privacy and security issues, as well as the two other access points. As the newest members to the neighborhood, all we can think of is that he wants to assert his dominance. We really are not sure why he's rocking the boat.
We also do not want to go to court.

McA (Colorado)
Posts: 11

Posted:

This is in Colorado. How would I find if that applies here? Thank you

TerriS6 (California)
Posts: 3,284

Posted:

Quote:

Posted By McA on 10/16/2023 7:14 PM
The backstory: We live on a street with 11 homes. There are no amenities and no common areas. The HOA was formed by the owners of the original land when it was divided into 9 plots. They no longer live on the street, and one is deceased. The majority of the covenants relate to an "architectural control committee" for the purpose of making sure the homes conformed to their standards. This was between 1989 and 1993 when the last plot was built. We were unaware we lived in a covenant community and had never seen the declaration. At no time were any dues paid, committees convened, or any meetings had. There is a n 8'utility easement between my home and my neighbor. It is to access a trail system. Prior to our taking ownership of the home, the neighbors built a fence excluding the gate to the trail. They have essentially abandoned and forfeit by adverse possession the small piece of property as it has been fenced out of their yard. To access the trail system, neighbors must come up our driveway to the gate as the previous owners have planted trees along the easement. For safety reasons, and without getting into details, we have removed the gate and fenced in our property which now blocks THIS access to the trail system. All the neighbors have other access to the trail system with minimal effort. It seems to us that the covenants are defunct. We have lived in our house for 18 years, and have never paid dues, attended a meeting, or had any dealings with any committee of any sort.

The declaration: (in part)
Article : No easements shall be fenced except along the edge (I am within this edge and did it with a permit from the city)
Article: Residents of the subdivision shall have access to the trail along the 8' easement between lots 8 and 9
Final paragraph: In the event the architectural control committee fails to approve or disapprove within 30 days after plans have been submitted to them. The approval will not be required and there will be deemed to have been full compliance with the related covenants.

The issue: One neighbor has suddenly decided he wants to access the trail system via my driveway and wants us to put a gate back or give him access to the private gate we put in which would mean he has to cross across not only the driveway, but part of our grass lawn. The fence has been erected for almost two years. He is claiming that without the access his house has depreciated in value as that is a "big selling point" and "the only reason we bought this house."
The covenants are "live" and registered with the county clerk.

The questions: Does the neighbor have the right to sue me or take me to court? And if so, would he win? Am I not within my rights according to the covenants? What can I do to stop the neighbor from pursuing this? I've explained our concerns about the access, and our safety concerns and he doesn't care.

Thank you for reading. I know it's long.

I would go to your county recorder and find out if any documents are recorded that would subject your property to any community interest laws.
Your utility easement is for utility maintenance, not for trail access. The Article, if it's legal, can't grant general access to a utility easement. Look at your original survey and define the easements.
Who owns the trails?
If the covenants just apply to architecture, that has nothing to do with access or trespassing.
As they say, good fences make good neighbors.

TerriS6 (California)
Posts: 3,284

Posted:

In California, there is a 5 year statute of limitations to enforce restrictions such as yours. Anybody suing you would probably LOSE based on the statute of limitations alone.

TerriS6 (California)
Posts: 3,284

Posted:

It looks like the statute of limitations is one year. Tough luck on your neighbors. https://law.justia.com/codes/colorado/2021/title-38/article-33-3/part-1/section-38-33-3-123/

BillD16 (Texas)
Posts: 971

Posted:

A picture or map sure would help.

Bill

HOA Board ex-President
Austin, Texas USA

“You can’t put too much water in a nuclear reactor”

TerriS6 (California)
Posts: 3,284

Posted:

No court is going to grant access to your neighbor to trespass on your property. In California, one can't acquire a prescriptive easement based on recreational use.

ElleN (Idaho)
Posts: 4,420

Posted:

Quote:

Posted By McA on 10/16/2023 8:21 PM
We purchased the house in foreclosure, and were never given a copy of the covenants.

As I indicated above, this almost assuredly does not matter.

It's also entirely possible that your closing documents speak of "restrictive covenants" applying. This also puts the burden on the buyer to find out what the covenants say.

The best way to use this forum is as preparation for a meeting with an attorney. For this preparation, it would be best to quote verbatim here exactly what the covenants and/or plats say about this easement.

Whatever the covenants and/or plats say about who can use this easement likely still applies.

Quote:

Posted By McA on 10/16/2023 8:21 PM
We had never seen them until 3 weeks ago.
We don't want to charge anyone with trespassing. We just don't want people walking down our driveway. People have littered, left dog feces, verbally threatened and cursed at my wife.
We also don't want the tiny piece of land via adverse possession. We would love to fence it back to them. They abandoned it over 20 years ago.

In my opinion your use of the word "abandoned" represents some kind of legal conclusion without any basis. Legally, to me it appears the status of this land is not known.

Quote:

Posted By McA on 10/16/2023 8:21 PM
They don't want it as it would mean the gate is via their driveway.

Again, this may be irrelevant. The covenants and/or plats are contractual terms. Your neighbors cannot change the covenants without taking many steps, including a vote of all the owners.

Quote:

Posted By McA on 10/16/2023 8:21 PM
There are two other easier and more convenient ways to access the trail system, I assure you.

You would have to seek an amendment to the covenants to force your neighbors to use these other access points, as opposed to using the access points the covenants/plats specify.

I am still not clear on exactly what is going on here. But so far it sounds like the problem is your neighbor will not provide the access he/she is supposed to provide. I do not care how many years have passed or how many gates your neighbor has installed. If the covenants say there is an easement that he is supposed to honor, then he is supposed to honor it. The other problem is people are choosing to trespass on your land, for which there is no easement, to access the trails. Is this correct?

Like BillD16 posted, a picture or map would help. One can attach pdf files to posts here, as long as the pdf file is less than 200 kbytes in size.

ElleN (Idaho)
Posts: 4,420

Posted:

Quote:

Posted By TerriS6 on 10/17/2023 4:24 AM
It looks like the statute of limitations is one year. Tough luck on your neighbors. https://law.justia.com/codes/colorado/2021/title-38/article-33-3/part-1/section-38-33-3-123/

This is about violations of covenants going forward. It is not about past violations. Hence any statute of limitations does not apply.

TerriS6 (California)
Posts: 3,284

Posted:

Quote:

Posted By ElleN on 10/17/2023 8:05 AM

Posted By TerriS6 on 10/17/2023 4:24 AM
It looks like the statute of limitations is one year. Tough luck on your neighbors. https://law.justia.com/codes/colorado/2021/title-38/article-33-3/part-1/section-38-33-3-123/

This is about violations of covenants going forward. It is not about past violations. Hence any statute of limitations does not apply.

The code says at 2. Notwithstanding any law to the contrary, no action shall be commenced or maintained to enforce the terms of any building restriction contained in the provisions of the declaration, bylaws, articles, or rules and regulations or to compel the removal of any building or improvement because of the violation of the terms of any such building restriction unless the action is commenced within one year from the date from which the person commencing the action knew or in the exercise of reasonable diligence should have known of the violation for which the action is sought to be brought or maintained.

The fence went up 2 years ago. The neighbor would have had to take action within the first year.. now it's too late.
And the easement is a utility easement. The article can't expand the use of the easement.

TerriS6 (California)
Posts: 3,284

Posted:

LeN says: The best way to use this forum is to prepare for an attorney.

WHAT??! The best way to use this forum is to AVOID attorneys.

TimB4 (Tennessee)
Posts: 21,059

Posted:

Per your posting, the covenants specified no fence on easements.
Per your posting, you placed a fence on the easement.

You are concerned that your neighbor can take you to court to enforce the covenants.

Typically, the owners of the properties OR the Association can bring legal action to enforce.
Specifics would be within your covenants under enforcement.

Secondary to this, is access to a trail system through your property.
An easement gives access to your property for a specific purpose.
Covenants may or may not legally add additional access on the easement.
Per your posting, this is a utility easement.
Per your posting, this is to also allow access to trails.
As a utility easement, your neighbor typically would not have unlimited access to your property via the easement to access the trails.

As Elle said, you need to gather up your governing documents along with a copy of the PLATs showing easements (PLATS should be available from the county/city courthouse or property records).
Take all of this to an attorney versed in property law and get a legal opinion.
It could be the best $300 to $1,000 you spend.

TerriS6 (California)
Posts: 3,284

Posted:

Quote:

Posted By TimB4 on 10/17/2023 8:21 AM
Per your posting, the covenants specified no fence on easements.
Per your posting, you placed a fence on the easement.

You are concerned that your neighbor can take you to court to enforce the covenants.

Typically, the owners of the properties OR the Association can bring legal action to enforce.
Specifics would be within your covenants under enforcement.

Secondary to this, is access to a trail system through your property.
An easement gives access to your property for a specific purpose.
Covenants may or may not legally add additional access on the easement.
Per your posting, this is a utility easement.
Per your posting, this is to also allow access to trails.
As a utility easement, your neighbor typically would not have unlimited access to your property via the easement to access the trails.

As Elle said, you need to gather up your governing documents along with a copy of the PLATs showing easements (PLATS should be available from the county/city courthouse or property records).
Take all of this to an attorney versed in property law and get a legal opinion.
It could be the best $300 to $1,000 you spend.

He didn't block the utility easement, he built a fence along the side. The neighbor planted trees blocking the easement. Neighbors are trespassing on his property. Statute of limitations ran out a year ago so the neighbor has no recourse but to use the alternate entrance to trails.

ElleN (Idaho)
Posts: 4,420

Posted:

Quote:

Posted By TerriS6 on 10/17/2023 8:16 AM

The code says at 2. Notwithstanding any law to the contrary, no action shall be commenced or maintained to enforce the terms of any building restriction contained in the provisions of the declaration, bylaws, articles, or rules and regulations or to compel the removal of any building or improvement because of the violation of the terms of any such building restriction unless the action is commenced within one year from the date from which the person commencing the action knew or in the exercise of reasonable diligence should have known of the violation for which the action is sought to be brought or maintained.

The fence went up 2 years ago. The neighbor would have had to take action within the first year.. now it's too late.
And the easement is a utility easement. The article can't expand the use of the easement.

-- This concerns not a building restriction but an easement. And you better believe there is a world of legal difference between the two.

-- This forum does not know what exactly the easement says. The OP stated the easement is a "utility easement" and also "to access a trail system."

-- I would never imply, as you seem to, that this forum's advice can substitute for the advice of a competent attorney.

TimB4 (Tennessee)
Posts: 21,059

Posted:

With Terri's input, I reread your posting and change part of my opinion (due to my misunderstanding):

1) The action should be against the neighbor who planted trees (you might have standing for such an action).

2) Since the covenants specify access to the trails is between your two lots, I do believe that as long as you didn't block the easement with the fence, this shouldn't be your issue. If you did block access to the trails with your fence, combined with the trees, you are partially accountable.

Still stand on the advice to get a legal opinion.

Easiest suggestion - move the fence a few feet to allow access (may be the least expensive option).
2nd easiest suggestion - have the trees removed or moved to allow access.

Best advice - get a legal opinion.

TerriS6 (California)
Posts: 3,284

Posted:

Quote:

Posted By ElleN on 10/17/2023 8:31 AM

Posted By TerriS6 on 10/17/2023 8:16 AM

The code says at 2. Notwithstanding any law to the contrary, no action shall be commenced or maintained to enforce the terms of any building restriction contained in the provisions of the declaration, bylaws, articles, or rules and regulations or to compel the removal of any building or improvement because of the violation of the terms of any such building restriction unless the action is commenced within one year from the date from which the person commencing the action knew or in the exercise of reasonable diligence should have known of the violation for which the action is sought to be brought or maintained.

The fence went up 2 years ago. The neighbor would have had to take action within the first year.. now it's too late.
And the easement is a utility easement. The article can't expand the use of the easement.

-- This concerns not a building restriction but an easement. And you better believe there is a world of legal difference between the two.

-- This forum does not know what exactly the easement says. The OP stated the easement is a "utility easement" and also "to access a trail system."

-- I would never imply, as you seem to, that this forum's advice can substitute for the advice of a competent attorney.

Don't put words in my mouth. I never implied the forum was a substitute nor would I especially with some of the wanna be lawyers spouting off here.
Whatever the easement says, nobody has a right to trespass on his driveway and claim they have authority to do it.
The docs say he can build a fence on the side of the easement and that's what he did.

ElleN (Idaho)
Posts: 4,420

Posted:

Quote:

Posted By TerriS6 on 10/17/2023 8:36 AM

Don't put words in my mouth.

Do not post statements like, "WHAT??! The best way to use this forum is to AVOID attorneys."

This forum does not preach avoiding attorneys. This forum nearly always advises consulting an attorney.

The OP's situation begs for an attorney, especially with all the bs assumptions you are making.

TerriS6 (California)
Posts: 3,284

Posted:

Quote:

Posted By ElleN on 10/17/2023 8:44 AM

Posted By TerriS6 on 10/17/2023 8:36 AM

Don't put words in my mouth.

Do not post statements like, "WHAT??! The best way to use this forum is to AVOID attorneys."

This forum does not preach avoiding attorneys. This forum nearly always advises consulting an attorney.

The OP's situation begs for an attorney, especially with all the bs assumptions you are making.

It appears HIS fence didn't block the easement. End of story.

JoeN6 (Virginia)
Posts: 94

Posted:

I’m not an attorney, my interpretation of “ all the residents of the subdivision shall have access to the trail system along the utility easement between lots 8 and 9”. Sounds like the developer created an ingress/egress easement in this 8 foot wide area of land for all the residents use . No other language ? For foot travel ? Off road vehicle ?

ElleN (Idaho)
Posts: 4,420

Posted:

Quote:

Posted By ElleN on 10/17/2023 8:03 AM
For this preparation, it would be best to quote verbatim here exactly what the covenants and/or plats say about this easement.

The OP did say the following:

Quote:

Posted By McA
Article : No easements shall be fenced except along the edge (I am within this edge and did it with a permit from the city)
Article: Residents of the subdivision shall have access to the trail along the 8' easement between lots 8 and 9
Final paragraph: In the event the architectural control committee fails to approve or disapprove within 30 days after plans have been submitted to them. The approval will not be required and there will be deemed to have been full compliance with the related covenants.

TerriS6 (California)
Posts: 3,284

Posted:

Quote:

Posted By ElleN on 10/17/2023 8:44 AM

Posted By TerriS6 on 10/17/2023 8:36 AM

Don't put words in my mouth.

Do not post statements like, "WHAT??! The best way to use this forum is to AVOID attorneys."

This forum does not preach avoiding attorneys. This forum nearly always advises consulting an attorney.

The OP's situation begs for an attorney, especially with all the bs assumptions you are making.

All my "bs assumptions" whipped our board's attorney (the big HOA "expert") in all 5 lawsuits. Not a single appeal.

ElleN (Idaho)
Posts: 4,420

Posted:

Terri, quit hijacking threads with your personal situation. I am not an attorney. You are not an attorney.

TerriS6 (California)
Posts: 3,284

Posted:

Quote:

Posted By ElleN on 10/17/2023 9:41 AM
Terri, quit hijacking threads with your personal situation. I am not an attorney. You are not an attorney.

Don't lie. I was responding to your unjustified personal attack.

LetA (Nevada)
Posts: 2,679

Posted:

Quote:

Posted By McA on 10/16/2023 8:21 PM
We purchased the house in foreclosure, and were never given a copy of the covenants. We had never seen them until 3 weeks ago.
We don't want to charge anyone with trespassing. We just don't want people walking down our driveway. People have littered, left dog feces, verbally threatened and cursed at my wife.
We also don't want the tiny piece of land via adverse possession. We would love to fence it back to them. They abandoned it over 20 years ago. They don't want it as it would mean the gate is via their driveway.
There are two other easier and more convenient ways to access the trail system, I assure you. All 10 other neighbors have been using them for the last 2 years since we erected the fence.
We tried to reason with him explaining privacy and security issues, as well as the two other access points. As the newest members to the neighborhood, all we can think of is that he wants to assert his dominance. We really are not sure why he's rocking the boat.
We also do not want to go to court.

You will need an attorney and hopefully you have title insurance.

TimB4 (Tennessee)
Posts: 21,059

Posted:

Quote:

Posted By TerriS6 on 10/17/2023 8:52 AM

It appears HIS fence didn't block the easement. End of story.

I was unaware that you were associated with this Association or had access to a map.

From my reading, the OP put a fence along the edge of the easement.
What is not clear is if this fence forced people to access the trails from the neighbors side of the easement.

If it did, perhaps this is the reason the neighbor planted trees blocking access through the easement.
Now the neighbor wants to use the path of least blockage.

TerriS6 (California)
Posts: 3,284

Posted:

Quote:

Posted By TimB4 on 10/17/2023 1:12 PM

Posted By TerriS6 on 10/17/2023 8:52 AM

It appears HIS fence didn't block the easement. End of story.

I was unaware that you were associated with this Association or had access to a map.

From my reading, the OP put a fence along the edge of the easement.
What is not clear is if this fence forced people to access the trails from the neighbors side of the easement.

If it did, perhaps this is the reason the neighbor planted trees blocking access through the easement.
Now the neighbor wants to use the path of least blockage.

Fences along the edge of the easement are allowed.
His fence is along the edge of the easement.
Therefore, he is not blocking the easement.

TimB4 (Tennessee)
Posts: 21,059

Posted:

Depends which edge the fence is on.

The edge closest to his home or the edge closest/on his property line?

I don't know.

Per the OP: we have removed the gate[to the trail] and fenced in our property which now blocks THIS access to the trail system.

If the fence is along the edge closest to his house, then I would expect he is not blocking the easement and the neighbor would not win in court.
If the fence is along the edge along the property line, then the OP would likely be blocking some of the easement.

Can you say for certain which edge it is or is it simply where you are expecting the fence to be?

TerriS6 (California)
Posts: 3,284

Posted:

If they have to walk up his driveway, they have no right to be there.

TimB4 (Tennessee)
Posts: 21,059

Posted:

Quote:

Posted By TerriS6 on 10/17/2023 1:35 PM
If they have to walk up his driveway, they have no right to be there.

That's one opinion based on what the OP has provided.

Apparently, the neighbor has another opinion.

Keep in mind that, as I reread the original posting, the previous owner to the OPs property planted trees in the easement leaving only the driveway for access to the gate. Said gate was removed by the OP.

Again - to the OP gather everything and consult with an attorney

McA (Colorado)
Posts: 11

Posted:

The 3 original owners of the land that divided it no longer live in Colorado. One is deceased. There is no committee to speak of. No board members, nothing. No resident has ever paid dues, and for what purpose, as there are no common areas to care for. In my 18 years of living in the house, all of us have been living independently of each other minding our own business. Nobody has ever made mention of any community covenant.
Neither me or the neighbor in question would have a committee to go to. In the majority of the covenants, the committee is referred to as an architectural oversight committee. They should have appointed successors, or other board members, and this was never done.
So where to even begin?

McA (Colorado)
Posts: 11

Posted:

No other language.

McA (Colorado)
Posts: 11

Posted:

The 3 original owners of the land that divided it no longer live in Colorado. One is deceased. There is no committee to speak of. No board members, nothing. No resident has ever paid dues, and for what purpose, as there are no common areas to care for. In my 18 years of living in the house, all of us have been living independently of each other minding our own business. Nobody has ever made mention of any community covenant.
Neither me or the neighbor in question would have a committee to go to. In the majority of the covenants, the committee is referred to as an architectural oversight committee. They should have appointed successors, or other board members, and this was never done.

McA (Colorado)
Posts: 11

Posted:

The 3 original owners of the land that divided it no longer live in Colorado. One is deceased. There is no committee to speak of. No board members, nothing. No resident has ever paid dues, and for what purpose, as there are no common areas to care for. In my 18 years of living in the house, all of us have been living independently of each other minding our own business. Nobody has ever made mention of any community covenant.
Neither me or the neighbor in question would have a committee to go to. In the majority of the covenants, the committee is referred to as an architectural oversight committee. They should have appointed successors, or other board members, and this was never done.

McA (Colorado)
Posts: 11

Posted:

The 3 original owners of the land that divided it no longer live in Colorado. One is deceased. There is no committee to speak of. No board members, nothing. No resident has ever paid dues, and for what purpose, as there are no common areas to care for. In my 18 years of living in the house, all of us have been living independently of each other minding our own business. Nobody has ever made mention of any community covenant.
Neither me or the neighbor in question would have a committee to go to. In the majority of the covenants, the committee is referred to as an architectural oversight committee. They should have appointed successors, or other board members, and this was never done.

McA (Colorado)
Posts: 11

Posted:

The 3 original owners of the land that divided it no longer live in Colorado. One is deceased. There is no committee to speak of. No board members, nothing. No resident has ever paid dues, and for what purpose, as there are no common areas to care for. In my 18 years of living in the house, all of us have been living independently of each other minding our own business. Nobody has ever made mention of any community covenant.
Neither me or the neighbor in question would have a committee to go to. In the majority of the covenants, the committee is referred to as an architectural oversight committee. They should have appointed successors, or other board members, and this was never done.

TerriS6 (California)
Posts: 3,284

Posted:

Again I would claim the statute of limitations prevents a claim against you and there does not seem to be any authority to enforce a claim.

ElleN (Idaho)
Posts: 4,420

Posted:

Quote:

Posted By McA on 10/17/2023 6:39 PM
Nobody has ever made mention of any community covenant.

Do you understand that the Declaration is the covenants? That the full title for the "Declaration" is usually something like "Declaration of Covenants, Conditions and Restrictions"?

TimB4 (Tennessee)
Posts: 21,059

Posted:

Quote:

Posted By ElleN on 10/17/2023 8:03 PM

Posted By McA on 10/17/2023 6:39 PM
Nobody has ever made mention of any community covenant.

Do you understand that the Declaration is the covenants? That the full title for the "Declaration" is usually something like "Declaration of Covenants, Conditions and Restrictions"?

Regardless of name, restrictions on property use are deed restrictions.

A Deed restrictions document do vary in name and my be referred to by by others by many different names.
Here are a few:

Deed Restrictions
Restrictions (the title of our document)
Restrictive Covenants
The Declaration
Covenants
The Declaration of Covenants, Conditions and Restrictions

McA (Colorado)
Posts: 11

Posted:

Yes. The neighbor left a copy in our mailbox. They read "Declaration of Covenants"
However, this is the first time any neighbor has brought them up and is demanding that the utility easement be used, after two years have passed since it has been closed of by a fence.

LoriM15 (Florida)
Posts: 1,009

Posted:

What does your property survey say regarding the easement? Is it marked on your survey as a utility easement or does it have another title (sometimes our say drainage easement or recreational easement). It makes no sense that a utility easement would be used as access to the trail system.

At least in Florida, easements that were platted with the subdivision and filed with the county do not expire. And it doesn't matter whether or not anyone has challenged the easement for 15 years. The easement is there and they have the right to use it.

We have utility easements across the front yard of every home in our community. Recently a contractor started laying pvc pipe to run fiber for Lumen. They didn't even have to get any permission before they started digging. Nothing we can do.

McA (Colorado)
Posts: 11

Posted:

It reads: utility easement

TimB4 (Tennessee)
Posts: 21,059

Posted:

Personally, Since the covenants do specify that that easement is also to be used as access to the trails, combined with the knowledge that you are not the original owner of the property (meaning you should have been aware of the covenants when you purchased), it doesn't matter how long the access to the trail has been closed off.

The neighbor noticed it and brought it to your attention.

I think you would lose in court.

Either reestablish the access to the trail or talk to an attorney to identify your legal options is still my suggestion.

JoeN6 (Virginia)
Posts: 94

Posted:

McA ….. is your driveway inside of the utility easement ? If not , you are not obligated to allow access to the trail system via your driveway . You may have to install a gate in your fence somewhere . If only you could post a diagram of your lot and your neighbors.

You could bring your declarations to the county tax assessor, and your plat showing the easement , and negotiate a reduction in property tax due to the fact that some of your property is burdened by the requirement to allow access for the trail system benefitting the neighbors through the utility easement which is on your property . If the tax man wants to make up the difference , he could recoup the amounts from the lots 1 through 7 .

JaneL2 (Texas)
Posts: 175

Posted:

Quote:

Posted By McA on 10/16/2023 7:14 PM
The backstory: We live on a street with 11 homes. There are no amenities and no common areas. The HOA was formed by the owners of the original land when it was divided into 9 plots. They no longer live on the street, and one is deceased. The majority of the covenants relate to an "architectural control committee" for the purpose of making sure the homes conformed to their standards. This was between 1989 and 1993 when the last plot was built. We were unaware we lived in a covenant community and had never seen the declaration. At no time were any dues paid, committees convened, or any meetings had. There is a n 8'utility easement between my home and my neighbor. It is to access a trail system. Prior to our taking ownership of the home, the neighbors built a fence excluding the gate to the trail. They have essentially abandoned and forfeit by adverse possession the small piece of property as it has been fenced out of their yard. To access the trail system, neighbors must come up our driveway to the gate as the previous owners have planted trees along the easement. For safety reasons, and without getting into details, we have removed the gate and fenced in our property which now blocks THIS access to the trail system. All the neighbors have other access to the trail system with minimal effort. It seems to us that the covenants are defunct. We have lived in our house for 18 years, and have never paid dues, attended a meeting, or had any dealings with any committee of any sort.

The declaration: (in part)
Article : No easements shall be fenced except along the edge (I am within this edge and did it with a permit from the city)
Article: Residents of the subdivision shall have access to the trail along the 8' easement between lots 8 and 9
Final paragraph: In the event the architectural control committee fails to approve or disapprove within 30 days after plans have been submitted to them. The approval will not be required and there will be deemed to have been full compliance with the related covenants.

The issue: One neighbor has suddenly decided he wants to access the trail system via my driveway and wants us to put a gate back or give him access to the private gate we put in which would mean he has to cross across not only the driveway, but part of our grass lawn. The fence has been erected for almost two years. He is claiming that without the access his house has depreciated in value as that is a "big selling point" and "the only reason we bought this house."
The covenants are "live" and registered with the county clerk.

The questions: Does the neighbor have the right to sue me or take me to court? And if so, would he win? Am I not within my rights according to the covenants? What can I do to stop the neighbor from pursuing this? I've explained our concerns about the access, and our safety concerns and he doesn't care.

Thank you for reading. I know it's long.

I thought you said that all of the homes have access to the trail system and they can access it without going through your property? I am not a board memeber but I do know about some related laws inn Texas any way. It is my opinion that your association with no longer have any authority to enforece anything. If nothing in the declarations has every been enforced then they would most likely be abandoned in court Our documents say that our declarations cannot be changed, deleted or completely disolved until 30 years from the time that they were created. Does your documents have anything written like that?

JaneL2 (Texas)
Posts: 175

Posted:

Quote:

Posted By McA on 10/16/2023 7:14 PM
The backstory: We live on a street with 11 homes. There are no amenities and no common areas. The HOA was formed by the owners of the original land when it was divided into 9 plots. They no longer live on the street, and one is deceased. The majority of the covenants relate to an "architectural control committee" for the purpose of making sure the homes conformed to their standards. This was between 1989 and 1993 when the last plot was built. We were unaware we lived in a covenant community and had never seen the declaration. At no time were any dues paid, committees convened, or any meetings had. There is a n 8'utility easement between my home and my neighbor. It is to access a trail system. Prior to our taking ownership of the home, the neighbors built a fence excluding the gate to the trail. They have essentially abandoned and forfeit by adverse possession the small piece of property as it has been fenced out of their yard. To access the trail system, neighbors must come up our driveway to the gate as the previous owners have planted trees along the easement. For safety reasons, and without getting into details, we have removed the gate and fenced in our property which now blocks THIS access to the trail system. All the neighbors have other access to the trail system with minimal effort. It seems to us that the covenants are defunct. We have lived in our house for 18 years, and have never paid dues, attended a meeting, or had any dealings with any committee of any sort.

The declaration: (in part)
Article : No easements shall be fenced except along the edge (I am within this edge and did it with a permit from the city)
Article: Residents of the subdivision shall have access to the trail along the 8' easement between lots 8 and 9
Final paragraph: In the event the architectural control committee fails to approve or disapprove within 30 days after plans have been submitted to them. The approval will not be required and there will be deemed to have been full compliance with the related covenants.

The issue: One neighbor has suddenly decided he wants to access the trail system via my driveway and wants us to put a gate back or give him access to the private gate we put in which would mean he has to cross across not only the driveway, but part of our grass lawn. The fence has been erected for almost two years. He is claiming that without the access his house has depreciated in value as that is a "big selling point" and "the only reason we bought this house."
The covenants are "live" and registered with the county clerk.

The questions: Does the neighbor have the right to sue me or take me to court? And if so, would he win? Am I not within my rights according to the covenants? What can I do to stop the neighbor from pursuing this? I've explained our concerns about the access, and our safety concerns and he doesn't care.

Thank you for reading. I know it's long.

I thought you said that all of the homes have access to the trail system and they can access it without going through your property? I am not a board memeber but I do know about some related laws inn Texas any way. It is my opinion that your association with no longer have any authority to enforece anything. If nothing in the declarations has every been enforced then they would most likely be abandoned in court Our documents say that our declarations cannot be changed, deleted or completely disolved until 30 years from the time that they were created. Does your documents have anything written like that?

JaneL2 (Texas)
Posts: 175

Posted:

Quote:

Posted By McA on 10/16/2023 7:14 PM
The backstory: We live on a street with 11 homes. There are no amenities and no common areas. The HOA was formed by the owners of the original land when it was divided into 9 plots. They no longer live on the street, and one is deceased. The majority of the covenants relate to an "architectural control committee" for the purpose of making sure the homes conformed to their standards. This was between 1989 and 1993 when the last plot was built. We were unaware we lived in a covenant community and had never seen the declaration. At no time were any dues paid, committees convened, or any meetings had. There is a n 8'utility easement between my home and my neighbor. It is to access a trail system. Prior to our taking ownership of the home, the neighbors built a fence excluding the gate to the trail. They have essentially abandoned and forfeit by adverse possession the small piece of property as it has been fenced out of their yard. To access the trail system, neighbors must come up our driveway to the gate as the previous owners have planted trees along the easement. For safety reasons, and without getting into details, we have removed the gate and fenced in our property which now blocks THIS access to the trail system. All the neighbors have other access to the trail system with minimal effort. It seems to us that the covenants are defunct. We have lived in our house for 18 years, and have never paid dues, attended a meeting, or had any dealings with any committee of any sort.

The declaration: (in part)
Article : No easements shall be fenced except along the edge (I am within this edge and did it with a permit from the city)
Article: Residents of the subdivision shall have access to the trail along the 8' easement between lots 8 and 9
Final paragraph: In the event the architectural control committee fails to approve or disapprove within 30 days after plans have been submitted to them. The approval will not be required and there will be deemed to have been full compliance with the related covenants.

The issue: One neighbor has suddenly decided he wants to access the trail system via my driveway and wants us to put a gate back or give him access to the private gate we put in which would mean he has to cross across not only the driveway, but part of our grass lawn. The fence has been erected for almost two years. He is claiming that without the access his house has depreciated in value as that is a "big selling point" and "the only reason we bought this house."
The covenants are "live" and registered with the county clerk.

The questions: Does the neighbor have the right to sue me or take me to court? And if so, would he win? Am I not within my rights according to the covenants? What can I do to stop the neighbor from pursuing this? I've explained our concerns about the access, and our safety concerns and he doesn't care.

Thank you for reading. I know it's long.

I thought you said that all of the homes have access to the trail system and they can access it without going through your property? I am not a board memeber but I do know about some related laws inn Texas any way. It is my opinion that your association with no longer have any authority to enforece anything. If nothing in the declarations has every been enforced then they would most likely be abandoned in court Our documents say that our declarations cannot be changed, deleted or completely disolved until 30 years from the time that they were created. Does your documents have anything written like that?

ElleN (Idaho)
Posts: 4,420

Posted:

Quote:

Posted By JaneL2 on 11/01/2023 8:35 PM
If nothing in the declarations has every been enforced then they would most likely be abandoned in court

A lack of enforcement does not at all necessarily mean a court would rule the covenants are abandoned. In general nationwide, for a court to find a covenant is abandoned:

-- Many houses must have an outward appearance indicating the particular covenant is abandoned.

-- Many years have to have passed.

-- It must be obvious to people driving around the neighborhood that the covenant is abandoned.