Landscape Easement Understanding

MarqA1 (Michigan)
Posts: 24

Posted:

We have an area that borders the entrance to our subdivision, the HOA has been paying to have the grass cut on this area for 20 years is not a commons element but a landscape easement.

Since I have been involved in other HOA's when a neighbor complained that the HOA was not keeping up the "commons" area to their liking I dug out the by-laws and discovered that the assumption was wrong!

The lot owner is in disbelief that the area where this easement resides is his, he absolutely thinks the HOA owns it and that he has no obligation to maintain.

And for clarification the easement is within his property, meaning there is grass on both sides of the easement, this is what the HOA has been paying to be cut.

First thing we are going to do is use a site plan to measure the frontage, that should show that he owns more property than he thought.

We, the HOA, fully understand that we are responsibility for the contents of the easement, trees, rocks, shrubs, the entrance sign etc. In fact we have replaced damaged trees in the past so that is not an issue.

And yes I will be reviewing this with the township to get their opinion, we have also discussed taking this to a lawyer to provide an "opinion" if needed.

No matter what happens there will be an unhappy lot owner!

What I have not been able to find is any kind of description/explanation that details whose responsibility it is to maintain the grass that surrounds the easement! Yea I know it seems like common sense but again we're trying to correct an inaccurate understanding of that area for 20 years.

Any thoughts?

TimB4 (Tennessee)
Posts: 21,062

Posted:

Obtain a copy of a plat from the city/county.

Easements may or may not be shown on the Plat.

There might also be a legal agreement for the landscape easement recorded as well.

ElleN (Idaho)
Posts: 1,338

Posted:

Quote:

Posted By MarqA1 on 05/17/2025 5:38 AM
Yea I know it seems like common sense but again we're trying to correct an inaccurate understanding of that area for 20 years.

All your steps seem appropriate. To me, the main reason for paying an attorney is for the attorney to comment on the 20 years aspect. It is possible (though certainly not definite) that the HOA now has a legal obligation to continue maintaining the land (that does not belong to the HOA). Because this has gone on for 20 years, an implied agreement may exist, and it may be as binding as any agreement that is written down.

One example of why this may be significant: Someone trips and falls on the land that the HOA does not own but has been maintaining for some 20 years. The accident is due to improper maintenance (an irrigation pipe is sticking out, say). Who is liable? It is likely that the HOA will be liable and the HOA insurer will want to settle.

I have not read the case law on this. My comments come from direct experience with Party X maintaining land that it does not own for many years. The maintenance involves ensuring proper drainage. Party Y is uphill of this land. The attorney Party X consulted said Party Y can demand that Party X continue maintaining this land and might very well prevail if this went to court.

The goal in the OP's case should be to avoid litigation.

MarqA1 (Michigan)
Posts: 24

Posted:

"It is possible (though certainly not definite) that the HOA now has a legal obligation to continue maintaining the land (that does not belong to the HOA). Because this has gone on for 20 years, an implied agreement may exist, and it may be as binding as any agreement that is written down."

I disagree with this, if a misassumptions took place you dont ignore it you correct it. Plus how are 17 homeowners who have being disenfranchised for the benefit of 1 going to react when the information is known?

ElleN (Idaho)
Posts: 1,338

Posted:

Quote:

Posted By MarqA1 on 05/18/2025 4:28 AM
"It is possible (though certainly not definite) that the HOA now has a legal obligation to continue maintaining the land (that does not belong to the HOA). Because this has gone on for 20 years, an implied agreement may exist, and it may be as binding as any agreement that is written down."

I disagree with this, if a misassumptions took place you dont ignore it you correct it. Plus how are 17 homeowners who have being disenfranchised for the benefit of 1 going to react when the information is known?

In my opinion the question is whether the owner of the land will dispute that going forward, he must maintain it. If this owner does not dispute who owns the land and accepts that he must now maintain it, great.

Otherwise, I am speaking from a legal point of view about what could happen; how things could get ugly; et cetera.

There are other instances in the law where if a mistake happened in a reading of a legal document, and the mistake has gone on for many years, the mistake can now be a lawful part of the legal document.

It is what it is. All you can do is consult the lawyer; tell the owner his land is his to maintain; and see what happens.

KellyM3 (North Carolina)
Posts: 2,239

Posted:

I don't understand what you're trying to achieve by hiring attorneys and surveyors to prove a strip of grass, by the entrance, is not the HOAs. Are the savings, for the HOA, that substantive to attempt to prove the homeowner should mow it after two decades of HOA maintenance? Are you a new board member?

ElleN (Idaho)
Posts: 1,338

Posted:

Quote:

Posted By KellyM3 on 05/18/2025 2:41 PM
I don't understand what you're trying to achieve by hiring attorneys and surveyors to prove a strip of grass, by the entrance, is not the HOAs.

If it is clear to the OP and anyone paying attention that this land needs to be maintained by the HOA, then I agree that the Board should just send a letter to the owner with proof he owns the land and instruct him that he is now responsible for maintenance.

Then see what happens. The owner might just do as the HOA directs.

If the owner refuses, then consult an HOA attorney.

ElleN (Idaho)
Posts: 1,338

Posted:

Quote:

Posted By ElleN on 05/18/2025 4:35 PM
If it is clear to the OP and anyone paying attention that this land needs to be maintained by the HOA

Post-o. Change "HOA" to "owner."

JackS20 (North Carolina)
Posts: 271

Posted:

Quote:

Posted By KellyM3 on 05/18/2025 2:41 PM
I don't understand what you're trying to achieve by hiring attorneys and surveyors to prove a strip of grass, by the entrance, is not the HOAs. Are the savings, for the HOA, that substantive to attempt to prove the homeowner should mow it after two decades of HOA maintenance? Are you a new board member?

yep sounds like they have wasted over a thousand dollars already. grass strips probably costs less than that to cut per year. penny wise pound foolish?

DeanJ
Posts: 1,786

Posted:

Quote:

Posted By MarqA1 on 05/17/2025 5:38 AM
We have an area that borders the entrance to our subdivision, the HOA has been paying to have the grass cut on this area for 20 years is not a commons element but a landscape easement.

Since I have been involved in other HOA's when a neighbor complained that the HOA was not keeping up the "commons" area to their liking I dug out the by-laws and discovered that the assumption was wrong!

The lot owner is in disbelief that the area where this easement resides is his, he absolutely thinks the HOA owns it and that he has no obligation to maintain.

And for clarification the easement is within his property, meaning there is grass on both sides of the easement, this is what the HOA has been paying to be cut.

First thing we are going to do is use a site plan to measure the frontage, that should show that he owns more property than he thought.

We, the HOA, fully understand that we are responsibility for the contents of the easement, trees, rocks, shrubs, the entrance sign etc. In fact we have replaced damaged trees in the past so that is not an issue.

And yes I will be reviewing this with the township to get their opinion, we have also discussed taking this to a lawyer to provide an "opinion" if needed.

No matter what happens there will be an unhappy lot owner!

What I have not been able to find is any kind of description/explanation that details whose responsibility it is to maintain the grass that surrounds the easement! Yea I know it seems like common sense but again we're trying to correct an inaccurate understanding of that area for 20 years.

Any thoughts?

“We, the HOA, fully understand that we are responsibility for the contents of the easement, trees, rocks, shrubs, the entrance sign etc. In fact we have replaced damaged trees in the past so that is not an issue.”

Why isn’t sod a feature / content and what the difference between trimming overgrown shrubs and trimming overgrown grass?

Typically HOAs are responsible for 100% of the maintenance of a landscape easement. The fact the HOA has done this for 20 years kinda suggests this has been both a known responsibility and practice of the HOA.

If you had sufficient records, it is likely the conservation easement had all its features, including the sod, long before the lot was conveyed to the first owner.

DeanJ
Posts: 1,786

Posted:

Quote:

Posted By MarqA1 on 05/17/2025 5:38 AM
We have an area that borders the entrance to our subdivision, the HOA has been paying to have the grass cut on this area for 20 years is not a commons element but a landscape easement.

Since I have been involved in other HOA's when a neighbor complained that the HOA was not keeping up the "commons" area to their liking I dug out the by-laws and discovered that the assumption was wrong!

The lot owner is in disbelief that the area where this easement resides is his, he absolutely thinks the HOA owns it and that he has no obligation to maintain.

And for clarification the easement is within his property, meaning there is grass on both sides of the easement, this is what the HOA has been paying to be cut.

First thing we are going to do is use a site plan to measure the frontage, that should show that he owns more property than he thought.

We, the HOA, fully understand that we are responsibility for the contents of the easement, trees, rocks, shrubs, the entrance sign etc. In fact we have replaced damaged trees in the past so that is not an issue.

And yes I will be reviewing this with the township to get their opinion, we have also discussed taking this to a lawyer to provide an "opinion" if needed.

No matter what happens there will be an unhappy lot owner!

What I have not been able to find is any kind of description/explanation that details whose responsibility it is to maintain the grass that surrounds the easement! Yea I know it seems like common sense but again we're trying to correct an inaccurate understanding of that area for 20 years.

Any thoughts?

“We, the HOA, fully understand that we are responsibility for the contents of the easement, trees, rocks, shrubs, the entrance sign etc. In fact we have replaced damaged trees in the past so that is not an issue.”

Why isn’t sod a feature / content and what the difference between trimming overgrown shrubs and trimming overgrown grass?

Typically HOAs are responsible for 100% of the maintenance of a landscape easement. The fact the HOA has done this for 20 years kinda suggests this has been both a known responsibility and practice of the HOA.

If you had sufficient records, it is likely the conservation easement had all its features, including the sod, long before the lot was conveyed to the first owner. In other words, the easement was in place with all the features and the remainder of the lot was bare soil until after the home was built and conveyed to the first owner.

MarqA1 (Michigan)
Posts: 24

Posted:

So some are getting the homeowners property mixed up with the landscape easement.

The HOA has responsibility to maintain the easement, that is not disputed.

But the HOA does not own or have any responsibility to maintain any portion of the property that the landscape easement resides on.

This is nothing more than an misunderstanding, or maybe wishful thinking, for 20 years by everybody regarding this landscape easement, everybody "assumed" it was common property that the HOA owned (like a pool or clubhouse) it is not, it is private land.

As we have dug into the information we now see that the legal description for the lot includes the landscape easement so this pretty much resolves the question of who owns the property.

Now we just have to let reality sink in and figure out how we are going to unwind a service that has been provided for all these years.

If you ask the other 17 lot owners if we should continue paying to cut a portion of one owners property you know what the answer will be!

ElleN (Idaho)
Posts: 1,338

Posted:

MarlqA1, I think you need to give the terms of the "landscape easement." Otherwise, I cannot tell what is in dispute.

ElleN (Idaho)
Posts: 1,338

Posted:

Quote:

Posted By MarqA1 on 05/17/2025 5:38 AM

And for clarification the easement is within his property, meaning there is grass on both sides of the easement, this is what the HOA has been paying to be cut.
...
What I have not been able to find is any kind of description/explanation that details whose responsibility it is to maintain the grass that surrounds the easement! Yea I know it seems like common sense but again we're trying to correct an inaccurate understanding of that area for 20 years.

Yup, common sense. Where there is no easement for maintenance: Ya own it, you maintain it.

MarqA1 (Michigan)
Posts: 24

Posted:

Quote:

Posted By ElleN on 05/20/2025 5:32 AM
MarlqA1, I think you need to give the terms of the "landscape easement." Otherwise, I cannot tell what is in dispute.

A landscape easement is a legal agreement that grants a specific party (like a landowner, municipality, or utility company) the right to maintain a certain area of land, often for the purpose of preserving vegetation, maintaining visual buffers, or protecting natural features. It's a type of easement that restricts the ability of the property owner to make changes to the landscaping within the easement area, ensuring that the designated purpose is maintained.

ElleN (Idaho)
Posts: 1,338

Posted:

Quote:

Posted By MarqA1 on 05/20/2025 8:23 AM

Posted By ElleN on 05/20/2025 5:32 AM
MarlqA1, I think you need to give the terms of the "landscape easement." Otherwise, I cannot tell what is in dispute.

A landscape easement is a legal agreement that grants a specific party (like a landowner, municipality, or utility company) the right to maintain a certain area of land, often for the purpose of preserving vegetation, maintaining visual buffers, or protecting natural features. It's a type of easement that restricts the ability of the property owner to make changes to the landscaping within the easement area, ensuring that the designated purpose is maintained.

You first posted (in part) this:

Quote:

Posted By MarqA1 on 05/17/2025 5:38 AM
We have an area that borders the entrance to our subdivision, the HOA has been paying to have the grass cut on this area for 20 years is not a commons element but a landscape easement.

I cannot tell what is going on here.

Is this landscape easement written down?

What is it that the HOA has been doing for 20 years that you think that, per the terms of the easement, the HOA should not be doing?

ElleN (Idaho)
Posts: 1,338

Posted:

Strike that. It's the grass that is //not// part of the easement that you all want the owner to maintain.

I do not understand what the problem is here. Maybe you all are just overthinking things?

My caveat remains that 20 years of doing xyz may result in a contractual obligation to continue doing xyz.

DeanJ
Posts: 1,786

Posted:

Quote:

Posted By MarqA1 on 05/20/2025 4:28 AM
So some are getting the homeowners property mixed up with the landscape easement.

The HOA has responsibility to maintain the easement, that is not disputed.

But the HOA does not own or have any responsibility to maintain any portion of the property that the landscape easement resides on.

This is nothing more than an misunderstanding, or maybe wishful thinking, for 20 years by everybody regarding this landscape easement, everybody "assumed" it was common property that the HOA owned (like a pool or clubhouse) it is not, it is private land.

As we have dug into the information we now see that the legal description for the lot includes the landscape easement so this pretty much resolves the question of who owns the property.

Now we just have to let reality sink in and figure out how we are going to unwind a service that has been provided for all these years.

If you ask the other 17 lot owners if we should continue paying to cut a portion of one owners property you know what the answer will be!

If I lived in a community of only 18 homes, I would complain about the maintenance of a sign and a landscaped area that was primarily installed to aid the developer sell homes.

Take it out, install sod, advise the owner the HOA is relinquishing their easement rights and let him do with his property as he desires.