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Easements in Townhome Communities

A competent homeowners association (HOA) property management company can advise on how to handle sensitive issues detailed in an HOA’s covenants, conditions, and restrictions (CC&Rs).  These CC&Rs give the HOA authority to go onto a homeowner’s property and to perform maintenance on elements that the association does not physically own. Questions such as, how in a townhome HOA can the board of directors have repair work done to individual lot owner’s dwelling, crossing onto private property, owned by the lot owner, to achieve repairs be legal. HOA property management companies will advise that repairs that are, in most instances, HOA responsibilities can be completed. These repairs can be done, because it is the HOA’s responsibility, and authority is granted to the HOA through the CC&Rs of the HOA. Below is an example of this right to enter provision taken from a townhome HOA established in 2002.

In the event a Lot Owner within the Homeowners Association shall make unauthorized changes or alterations or damage or neglect to the dwelling or Lot, and the situated thereon in a manner unsatisfactory to the Board of Directors or the Architectural Control Committee, the Board of Directors shall have the right and authority, themselves, or through its agents or employees, to enter upon said Lot and to restore, maintain or repair the Lot and the dwelling and any other improvements erected thereon. The cost of any such restoration, maintenance, or repair and any other reasonable costs or legal fees incurred in the enforcement of the rights and authority under these provisions shall be added to the Lot Owners account and shall become a lien upon the Lot and such improvement upon the Lot. Any and all approval for this action by the Board of Directors shall be in accordance with the requirements set forth hereafter in the Homeowner Association Declaration of Covenants, Conditions, and Restrictions, and must be in writing.

Again, a competent property management company will relay that even if the HOA’s governing documents allow for this type of authority, the association’s attorney must be consulted to ensure the legality of any actions taken.

A good property management company will know that an “easement” is the right of another party to have rights over another party’s real property. Real property being land, and everything permanently attached to the land. In short, an easement is typically a nonpossessory interest that one party has in another party’s land that entitles the first party certain uses or the ability to limit the landowners use of the land. With regard to HOA easements, these rights typically grant right of entry upon, the right of use of, restrict the deeded owner from certain uses or activities.

Most people are aware of easements regarding municipalities and utility providers. Municipality right of way easements to lay sewer lines and the continued maintenance of these lines is common within HOAs. Utility provider easements, such as for power companies to main powerlines and transformers are also common within HOAs.

The term “negative easement” is used in describing some of the easements located in HOA CC&Rs. Negative in that the easement restricts alterations to real property. Such as building a home addition or placing a secondary structure onto the lot.

The majority of easement cases in the court system are there because of misunderstandings at the time the easement was initially recorded. Or when a new owner of the land failed to understand the consequences of an easement. Easement cases involving HOA members are almost always the latter.

An reliable HOA property management company knows that easements can be permanent or temporary. Most easements involving HOAs are permanent in nature and travel with the land. Temporary easements can be set to expire at a date in the future or after a specific task has been accomplished. Temporary easements with HOAs typically only come up with construction matters, and this is typically during initial construction of the HOA by the developer.

A common easement issue that arises in HOAs is rights of way and rights concerning water flow. The Natural Flow Rule issue comes up when one HOA lot owner purposely or inadvertently diverts water onto another HOA lot owner’s property. The HOA having easements in place to deal with issues of this nature are a great benefit to the entire HOA membership.

The following example of easement language comes from an HOA townhome community’s CC&R established in 2004. This easement provision is established for initial construction, with some transitioning to the HOA after construction.

EXHIBIT XXI – Easements: All of the Properties within the Homeowners Association, including individually owned Lots and Common Areas, shall be subject to such easements for walkways, driveways, parking areas,  water supply lines, sanitary sewer lines, storm drainage lines and facilities, gas lines, telephone lines, and electric power lines, and other public utilities as shall be established by the Declarant or by its predecessors in title or by governmental authority; further, the Homeowners Association shall have the authority and power to grant and establish upon, over, under, across, and through the Common Areas conveyed to the Homeowners Association, such further easements as are necessary for the convenient utilization and enjoyment of the Properties. Furthermore, there is hereby reserved in the Declarant, its agents, and employees an easement and right of ingress, egress, and regress across all Common Areas, now or forever owned by the Homeowner Association, for the purpose of construction of improvements, repairs, maintenance within the Properties, including the right of temporary or long-term storage of construction materials or equipment on said Common Areas.

As long as Declarant or its predecessors in title owns any property described on Exhibit “B,” Declarant or its predecessors in title reserves the blanket easements along with the right to grant specific easements, as needed, over all the Properties, including Lots and Common Areas, as may be necessary in conjunction with the overall development of the property described on Exhibit “B” or any adjacent property (including without limitation the planning, the construction, the marketing, the leasing, the management, and the maintenance of such improvements) for use, enjoyment, access, construction, maintenance, and repair of public or private utilities and storm drainage (whether surface or subsurface or both). Easements may not be located within the area beneath a structure located thereon.

Your HOA property management company would know that all Lots shall be subject to easements for the encroachment of improvements constructed on adjacent Lots by the Declarant at the time of initial construction or with ongoing construction; To the extent that such initial improvements or ongoing improvements in fact encroach, including, but not limited to, such items as overhanging eaves, roofs, walls, and temporary construction bracing.

Declarant explicitly reserves access easements over all Lots for construction, maintenance, and repair, either for a Lot or any adjacent property and easements for the installation, maintenance, and repair of public or private utilities and storm drainage lines (whether surface or subsurface).

Cross-easements are reserved in favor of Lot Owners that comprise a building for access to and from each other Lot comprising the building and the Common Area adjacent to the Lots comprising the building, including, but not limited to the transportation of roll-out garbage containers; however, this does not allow access to approved decks, patios, or areas with approved fences.

If the HOA’s CC&Rs are written properly and filed properly, issues seldom arrive that cannot be dealt with effectively. Your HOA property management company should be able to assist when problems arise.  The most difficulties HOAs encounter is the litigation with lot owners when the HOA’s authority is challenged even when the HOA position is clear. Litigation is very expensive even when the HOA is on the side of right defending what is obviously addressed in the governing documents.

William Douglas Management, providing excellent property management services to HOAs and condominium associations since 1980.

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