Restricting easements

Started by DavidR13 • 19 replies • 356 views

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DavidR13 (Virginia)
Posts: 14

Posted:

A contiguous property wants access to our private roads. This will allow cars from that development to get to our roads and thus greatly increase wear on this tar-chip surface. That other development has a separate way to get to a public road, but it is less convenient.

We are 43 lots, and have only 1 entrance to our development, so no thru traffic.

We want to prevent property owners in our development from granting right-of-way or easement to owner of any contiguous property. This will restrict the property owner's rights, but prevent a thru traffic on our small road.

We will revise our bylaws, by proper vote procedure, to add this restriction.

KerryL1 (California)
Posts: 14,550

Posted:

Who is obligated to maintain, repair and replace your Roads? This would be in your covenants (CC&Rs, declaration, deed restrictions).

How, by what what method, would it be possible that any owner could give access to your road?

O,r are you saying that somehow a lot owner in your HOA could grant vehicle access across their lot to your HOA's road?

SteveM9 (Massachusetts)
Posts: 3,699

Posted:

Seek the services of a real estate lawyer. This is a legal issue and needs paid help. Basically something along the lines of overburdening the easement. By allowing another development it would overburden the current easement. How to legally do this? Not sure.

TerriS6 (California)
Posts: 3,284

Posted:

Your Declaration probably has a clause that would require a vote of the membership to allow that access. If you have only one entrance/exit, your membership would likely have to vote to create an easement to your private roads which I doubt they would want. Have you held a meeting about it?

CathyA3 (Ohio)
Posts: 6,299

Posted:

If your community's streets are private (owned by the HOA), I strongly doubt that any individual owner has the right to grant an easement to use of the street since that person isn't the sole owner of the road.

In this case, an amendment to the CC&Rs would be required since the existence of the easement would need to be documented and recorded with the county. This means membership approval.

Both of the above would involve hiring and paying a lawyer - increased assessments, in other words.

You'd also (probably) need to get approval from the local zoning office since the proposed easement would re-route traffic patterns and has the potential to cause other issues downstream from you.

And then there's the traffic and noise. The increase in traffic would mean road damage, thus increasing the community's reserve requirements for the future. Increased assessments again..

Given all of the above, this issue is probably moot. Once people realize this easement would be all downside for your community with all of the upside going to others, they'll probably say "oh h3ll no". Even somebody who wants to do a favor for their good buddy outside your community will think twice when they realize how much it will cost them personally for this.

DavidR13 (Virginia)
Posts: 14

Posted:

Thank YOU! everyone, for valuable advice.

The owner of the adjoining property (a prominent developer) has employed a very influential land attorney for the purpose of gaining access to our roads (for his future development). This access would offer a very convenient route to a public road, via our private road.

Some lot owner properties extend to the opposite side of the road serving their home. So, the roads actually pass through private properties. They are not owned by the HOA, but are repaired by it. In some cases, the "other side" is on the boundary line to property outside of our development.

Our attorney expects their attorney to start offering $$ to any lot owner who will grant access to our road, across the lot owner's property which abuts the roads. Also expects their attorney to offer $ to other members to secure a favorable vote.

Nothing in our CCR prevents such a grant, so we are putting it to a vote for a Bylaw addition tomorrow, 4/21/2024.

Our attorney says to go ahead, and if challenged, she will do the research.

Everyone is against allowing access to this developer - until $ are offered.

TerriS6 (California)
Posts: 3,284

Posted:

Still suggest a meeting of members. Maybe private property and no trespassing signs on the back lots for those members interested. And members should be informed emphatically that one member has no authority to grant access to common areas/roads. And I would really study your Declaration for restrictions on burdening/altering the use of common areas, and check the voting percentage needed to amend your Declaration.

Plus there are zoning issues and land use restrictions from your local government. Your development plan was probably approved based on the current road configuration. That other development behind you probably had to perform a traffic impact study which showed its road plan was adequate and no more roads were developed. Can that development be expanded in the future so that if access was somehow granted via your roads, it could be more heavily burdened in the future?

Does everyone understand property values would plummet?

Does the neighboring development understand that bribery is a crime?

ElleN (Idaho)
Posts: 4,420

Posted:

Quote:

Posted By DavidR13 on 04/20/2024 6:34 AM

Nothing in our CCR prevents such a grant, so we are putting it to a vote for a Bylaw addition tomorrow, 4/21/2024.

I hope you meant an amendment to the CCRs. If the Bylaws speak to land use, this would be unusual.

CCRs usually have a higher threshold for amendments.

You do realize that Bylaws and CCRs are two different documents, right?

GregoryT1
Posts: 315

Posted:

hi David,

Quick question. The lot owners in your development if they own the land but the HOA private road runs on it does that mean the existing lot owners in your development has given easement rights to the HOA for the use of the land for the private road?

KerryL1 (California)
Posts: 14,550

Posted:

DavidR wrote: "Some lot owner properties extend to the opposite side of the road serving their home. So, the roads actually pass through private properties. They are not owned by the HOA, but are repaired by it. In some cases, the 'other side' is on the boundary line to property outside of our development.

If portions of the common area road in your HOA are owned by some individual lot owners, how is maintenance of these specified in your CC&Rs?

Is there any wording in your CC&Rs saying that the HOA road is to be used by owners and their invitees, etc., only? Even if not, I don't see how a lot owner going th other access to thier portion of the street gives anyone the right to drive onto the HOA's portion of the road.

I wrote way above that this is a CC&R issue and Elle notes that as well. Did your attorney advise that this somehow be a Bylaw topic??? Is she an HOA lawyer?

Can you share the wording of this "Bylaw" amendment?

DavidR13 (Virginia)
Posts: 14

Posted:

Morning Greg,
No, we have not given any easements regarding the road use or repair. Actually, there is nothing in the covenants about the roads, other than giving lot owners the right to use them to exit the development. It also specifies that the dues are partly for snow clearance and road repairs.

DavidR13 (Virginia)
Posts: 14

Posted:

Hi Terri,
There is nothing about granting access in any document, so past legal advice has said that the HOA has nothing to say about granting easements across lot owner's property. Deed restrictions have to do with buildings, fences, etc. Meeting later today during which I will emphasize the bad outcome of anyone giving permission to cross their property to get on the road. Will try to put it in a bylaw.

DavidR13 (Virginia)
Posts: 14

Posted:

Hi Ellen,
Our CCRs can only be amended every 10 years, so we will attempt a bylaw revision. This can be done every 5 years, and we are at that juncture now. Attorney said to try it, and if challenged, she will research.

DavidR13 (Virginia)
Posts: 14

Posted:

Hi Kerry,
HOA is specified as the entity for snow removal and repair. Most lots extend halfway into the road, but there is supposedly a 20 ft. right-of-way from the center to the edges. Some lots go across the road, to the boundary of the adjoining property. These are the ones where a lot owner could give access to someone outside the development. Easement rights are possibly reserved for the land owner. Nothing in the Virginia statutes directly address this.

No document specifies who can or cannot use the roads, although the HOA has the right to control use. We will ask for a vote that clarifies this. It will be worded to limit use by members and invitees. Should be obvious, but we need it as an official vote to fend off a very aggressive law firm.

The bylaw amendment will be separate and will be " No property owner may give right-of-way, easement, or permission: to access any of ORIII subdivision or roads, to an adjoining or adjacent property that is not already a part of the ORIII subdivision. For easement requests from utilities or Virginia Commonwealth agencies, property owner must notify the Board of the request".

Attorney has HOA clients. I caught her at the last minute on Friday, so she could not offer a firm answer, except to go ahead and try this route. Might not fly. Meeting today at 1 pm.

TerriS6 (California)
Posts: 3,284

Posted:

Quote:

Posted By DavidR13 on 04/21/2024 4:56 AM
Hi Kerry,
HOA is specified as the entity for snow removal and repair. Most lots extend halfway into the road, but there is supposedly a 20 ft. right-of-way from the center to the edges. Some lots go across the road, to the boundary of the adjoining property. These are the ones where a lot owner could give access to someone outside the development. Easement rights are possibly reserved for the land owner. Nothing in the Virginia statutes directly address this.

No document specifies who can or cannot use the roads, although the HOA has the right to control use. We will ask for a vote that clarifies this. It will be worded to limit use by members and invitees. Should be obvious, but we need it as an official vote to fend off a very aggressive law firm.

The bylaw amendment will be separate and will be " No property owner may give right-of-way, easement, or permission: to access any of ORIII subdivision or roads, to an adjoining or adjacent property that is not already a part of the ORIII subdivision. For easement requests from utilities or Virginia Commonwealth agencies, property owner must notify the Board of the request".

Attorney has HOA clients. I caught her at the last minute on Friday, so she could not offer a firm answer, except to go ahead and try this route. Might not fly. Meeting today at 1 pm.

If every one of the lots goes to the center of the road, each homeowner would have to grant a new right of way to the neighboring subdivision.

TerriS6 (California)
Posts: 3,284

Posted:

Every deed probably specifies the right of way only for the association or utilities.

ElleN (Idaho)
Posts: 4,420

Posted:

Quote:

Posted By DavidR13 on 04/21/2024 4:24 AM
Hi Ellen,
Our CCRs can only be amended every 10 years, so we will attempt a bylaw revision. This can be done every 5 years, and we are at that juncture now. Attorney said to try it, and if challenged, she will research.

If you have enough votes, I think I would try both, simultaneously. Why? Because the Virginia POA statute says that, if not challenged after a year, an amendment to the Declaration is permanent. See all of § 55.1-1829 at https://law.lis.virginia.gov/vacodepopularnames/property-owners-association-act/.

KerryL1 (California)
Posts: 14,550

Posted:

Hope the m meeting went well, DavidR. Meanwhile would you mind providing the exact wording of the CC&R that states "the HOA has the right to control use" of the road?

DavidR13 (Virginia)
Posts: 14

Posted:

"The Corporation is organized for controlling the use of and maintaining the condition of the roads in ...OR3"

As the issue of the adjoining property was urgent, we used the bylaws to restrict lot owners from granting this developer an easement across their personal property and thus to the road. There was another bylaw added that confirms the use of the roads as only for members, guests, and official vehicles.

This is the year (every 5) that the bylaws can be amended. We have 5 more before we can amend the covenants. Such restrictions are not normally in bylaws, but I could find nothing in Virginia HOA law, or otherwise, that prohibits or restricts this.

It was imperative to find a way to prevent certain lot owners from granting such an easement.

JeffT2 (Iowa)
Posts: 880

Posted:

Quote:

Posted By DavidR13 on 05/03/2024 1:26 PM
This is the year (every 5) that the bylaws can be amended.

Clearly, you should do another amendment that removes the restriction that the bylaws can only be amended every five years. You want to be able to amend at any time.

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