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Subject: Easements
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Author Messages
PeterD3
(Florida)

Posts:708


02/16/2011 1:50 PM  
Simply stated it's my understanding that an easement allows the use of private property by others for SPECIFIC reasons such as utilities, maintenance, and drainage for example.

In our HOA several lots contain a 12' wide "Drainage Easement" as indicated on the plat and lot surveys. Under these are 18" culverts which direct the street drain's water runoff into the lakes.

Now... A person plants a tree or constructs a gazeebo or paver patio or whatever in the easement or above the culvert. For whatever reason the culvert must be serviced by excavation or digging in the easement.

Q#1... What are the liabilities/responsibilities here for the lot owner as far as removing the items and subsequent replacement or reconstruction of the items after the repair(s)?

Q#2... Lets say in the case of a tree the roots damage the culvert and is the reason for the repairs. How does that effect the lot owners liabilities/responsibilities as in Q1?

Thanks in Advance.. Peter
DonnaS
(Tennessee)

Posts:5671


02/16/2011 3:05 PM  

Peter,

Easements in my HOA were sacred territory. No planting or building in them. Period. We did allow fences on the lot lines which were inside of the easements but those fences had to be installed with a system which allowed them to be undone, using a peg and post joint which was easily removed.

When an owner plants or installs anything within those easeents, they should be responsible for any damage to infrastructure, including the culverts. Not knowing what part of Florida you are in, the weather has a definite impact on easement purposes such as yours. In the south Florida area, easements are also swales which direct the heavy rains downward to the sewers so planting inside of them is forbidden. The impedement of the water flow can cause major problems for the houses on both sides of the easements.

If you are in the south and if your developement is newer, your individual documents will state that there must be NO interference in the easements. Checks your docs. Owners will hold the liability for repair and replacement of any damage to infrastructure if indeed they were responsible for any damage. If your documents do not address this, then it might be added to your ARC guidelines.
PeterD3
(Florida)

Posts:708


02/16/2011 3:47 PM  
Donna,
For the purpose of continuing the discussion... I somewhat disagree with the sentiment of your answer.

The property belongs exclusively to the owner, period. You would be trespassing if you were to set up a blanket and picnic on it and it may even be within the confines of a fence.

If my understanding is accurate the easement allows a conditional use by other SPECIFIC persons or entities for SPECIFIC reasons so I don't see how the HOA could regulate it's surface use.

I MAY however risk loss of the items in/on the easement or use of the same area temporarily while a easement access "event" occurs. Thus the reason for my questions.

NOT saying your wrong, but trying to peel back a few more layers of the onion sort-of-speak.
DonnaS
(Tennessee)

Posts:5671


02/16/2011 3:53 PM  

Peter,

I understand what you are saying. Currently, the term used for this easement area is escaping me. It means that yes, the property owner does own it but the easement has the priority use of it. Maybe someone else can come up with the term.
DonnaS
(Tennessee)

Posts:5671


02/16/2011 4:16 PM  

Peter, I still cannot find the correct term for this type of easement but Legal Eagle has this on their site.



An easement is the legal right or privilege of a second party to cross, make limited use of, or apply certain restrictions to another party's property. Easements commonly concern the maintenance of utilities infrastructure or public rights-of-way. For instance, PG&E might retain the right to enter your yard in order to repair power lines, or community members might be permitted to use a pathway cutting through your property. Generally, easements remain with the land, regardless of the owner. If there is an easement associated with your property, it will be noted on your property's certificate of title.

Having an easement gives the utility the right to use the land, but the utility does not own it. However, the property owner may encounter certain restrictions on land use in an area covered by a utility easement. For example, if a power company has a utility easement, the property owner cannot plant tall trees in the area of the easement, because they could interfere with the power lines. Likewise, a swimming pool could not be dug out where there is a buried gas line.

So does your ARC or CC&Rs have restrictions re: your easements?



PeterD3
(Florida)

Posts:708


02/16/2011 4:28 PM  
OK.
Another example is a 10' "utility easement" which runs in front of every lot. On it are driveways, landscaping, irrigation, etc.

All of these were put there by the builder/developer (and maybe in some cases additional landscaping by owner) so a "keep out" or similar policy or arguement seems difficult for me to understand.

I would also expect that if the power company needed to remove (a section of) my driveway in the easement they would be compelled to replace it.

I am not in this situation but rather exploring the nuances.

The tree [root] damage example seems a bit more cut-n-dry in that if "I" damage any common element I'm responsible regardless of it's above or below ground.
PeterD3
(Florida)

Posts:708


02/16/2011 4:29 PM  
I was typing whilst you replied again.
PeterD3
(Florida)

Posts:708


02/16/2011 4:31 PM  
No, NONE of the docs speak of easement restrictions. Just the definitions found on the plat and lot surveys.
SteveM9
(Massachusetts)

Posts:2852


02/16/2011 5:53 PM  
PeterD3,
Maybe its in the HOA docs or the subdivision plan the legal wording for the easement. Typically if someone has a drainage easement on your property, they can keep, maintain and improve that drainage. If the HOA wanted to cut down the tree, its likely they are quite in their right because it is interfering with the drainage.

- If you planted it, you may be responsible for removal because it may interfere with the HOA easement.
- If a previous owner planted it, its likely the HOA would pay to remove it.
JanetB2
(Colorado)

Posts:1962


02/16/2011 7:12 PM  
Hi Peter:

Our HOA lots are fairly small and have easements for utilities and irrigation. In essence each homeowner is aware of the easements and know anything they place in this area must be removable or it can be cut or torn down if needed. I have a waterfall and peach tree in this area and I know if we ever need to do any repairs on my portion of the line that these items might be removed if necesssary and must be replaced at my expense.

As far as your Q2 my opinion would be if you can prove the owner damaged HOA property then the owner can be held responsible for cost of repairs.

LynetteB
(Texas)

Posts:141


02/17/2011 8:22 AM  
Peter,
We have similar if not exact easements at my location. At our place the culverts were installed at a later date to help with erosion from the run-off. It is my hope that our ACC prevent any planting or building within any part of a drainage easement. Our CC&R's specifically state that the POA or other authorized entity is not responsible to any damage to property located within the easement area unless the property was specifically approved by the ACC to be located within the easement area. Double check your documents because the specific drainage easement info should be there. You can also check ACC approval for specific approval within the easement area.
LynetteB
(Texas)

Posts:141


02/17/2011 8:35 AM  
If your documents do not cover those specifics of easements then it is my opinion that they are poorly written and it would be worth the expense to have them revised to include those specifics.
Our CC&R's also cover the power company and driveway scenario and specify that the driveway is one of those items that cannot be disturbed without whoever needs to disturb it being liable. Any landscaping installed by anyone, including the developer, within an easement area could be removed or damaged in order to make repairs without liability.
I would agree that if the owner damaged any HOA property within the easement they would be solely responsible.
SusanW1
(Michigan)

Posts:5202


02/17/2011 8:38 AM  
We have a huge mess in our subdivision. The HOA owns the roads. The easement along part of the road contains canal frontage leading out to a sought after lake.

Some homeowners have been docking their boats along this canal for years. But they were homeowners whose back prpperty came up to the road, across from the canal.

Fast forward to the 2000s - Now it's gotten out of control, with homeowners 5 streets back docking their boats along this canal.

The HOA board didn't confront this years ago and is still sitting on their hands.

JanetB2
(Colorado)

Posts:1962


02/17/2011 9:14 AM  
Hi Peter:

The definition and information regarding the easements will probably be in your local city or county ordinances. Like you our easements are just noted on the subdivision plat. However, these are items that the City Planning required when the subdivision was established following the city ordinances.

JeffreyB3
(Michigan)

Posts:3


04/03/2013 10:56 AM  
Hi,

I am new to this forum so I'll try to explain my situation as best as I can. Thank you in advance for any input you may have.....

My wife and I purchased a lot to build on recently and have signed all of the paperwork/mortgage/construction loan, ect., and the builder just dug out the basement the other day. As I didn't have a detailed 'overview' of the lot schematics (not sure what the term is), my builder provided this for me the other day. In looking at the document, I discovered that in part of the property (within my property border), there is a statement that says "70' WD EASEMENT FOR LANDSCAPE TO PARKLAND HILLS.....". (I have attached document). On this portion of the property there is a very small hill that has ~12-16 6' pine trees planted. I had assumed that the owner of the property (who had it for 15 years) planted these at some point in time but now I am wondering if the association did this....I have a few calls in to determine. My plans for the property were to level the small hill and then relocate the pine trees to the back side of the property towards the road so that my family could then enjoy a large backyard. Now I'm not so sure I can do this based on what I see on this document. I've searched the internet hoping to find something similar to my situation but as of yet have been unable to find anything. Is it likely that the HOA has rights to this part of my yard and therefor I will not be able to touch it? If so, I assume that I am paying the property taxes for the entire area of the yard so if I am unable to use this portion as desired then essentially I should only be paying 2/3rds of the taxes. This just doesn't seem right to me....I would certainly welcome any input anyone has to my situation.

Attachment: 143561298971.doc

MelissaP1
(Alabama)

Posts:4733


04/03/2013 11:08 AM  
Please make this a new topic. It will get more attention.

Former HOA President
SheriC1
(Florida)

Posts:15


08/06/2013 5:48 AM  
JeffreyB3, I checked out your documents and the key issue is that you bought in a Condominium community. You do not own the land at all. The difference between a condominium HOA and townhouse HOA is that condominium owners only own paint to paint inside the home; and "typically" own limited elements, like a balcony. A townhome community owns the land in front and back of the home, with the rights to enjoy the use of that property subject to easements issues. Condo owners do not own the land, hence cannot move trees, or have exclusive, private use rights to the land. So, upon reading your documents, I would say, no way can you move any tree or use any property. I am not an attorney, but am a Realtor in FL. I have lived in other states and the laws are typically similar for condominiums and townhomes. Read the plat/deed drawing notes and it should become clear as to the definitions and meanings by those easements.
SteveM9
(Massachusetts)

Posts:2852


08/06/2013 11:12 AM  
My plans for the property were to level the small hill and then relocate the pine trees to the back side of the property towards the road so that my family could then enjoy a large backyard. Now I'm not so sure I can do this based on what I see on this document.


Correct. Its unlikely you can do anything within that 70' without HOA approval.

Is it likely that the HOA has rights to this part of my yard and therefor I will not be able to touch it?


Yes.

If so, I assume that I am paying the property taxes for the entire area of the yard so if I am unable to use this portion as desired then essentially I should only be paying 2/3rds of the taxes.


LOL. Your taxes are based on many factors. If you feel they didn't factor the easement of unusable land you can appeal your taxes. It's a long process. It may save you $50 year if you fight it. Since you live in a condominium, I wonder if any of your land is taxed at all. Typically the land around you is limited common area and some spots are common areas and it is not taxed.
MatthewW4
(Arizona)

Posts:500


08/06/2013 11:20 AM  
Sheri,

I am not so sure that Jeffrey's lot is part of a condominium. The easement is granted to a condo association. That makes it unlikely that the association owns the property as one does not normally grant an easement to oneself.

There is not enough information to arrive at a conclusion. If I were an attorney I would want to see Jeffrey's deed, the full plot plan, and any recorded plats for the area. I would be especially interested in knowing why a condo association has an easement for landscaping on Jeffrey's lot. It could be that a previous owner let the property turn into an eyesore but he allowed the condo association to landscape that portion of his lot near the road. With a new owner building and taking care of the lot, the condo association may consent to abandon its easement.



SheriC1
(Florida)

Posts:15


08/12/2013 4:38 AM  
Matthew, Jeffrey provided what appeared to be a plat. Plats show divisions of parcels, property lines, easements, drainage, etc., whether it be a condominium or hoa. Had he showed a HOA, it would have shown lot lines. I saw absolutely no division of property lines whatsoever and the plat stated condominum or condo association. The plat showed a building on a parcel for a home was on that plat in a condo association; hence, not private property. A plat shows several easements all the time: for signs, drainage, private property, utilities, retention ponds, private drainage easements, etc... Even a Condominium Association MUST show easements, even unto themselves. Many times plats show easements for plantings such as landscaping used for beautification and privacy. The only way to be sure is for him to read exactly what was written on that planning plat by the surveyors and engineers. I doubt that Association is going to change one bit of landscaping for one condo owner. One thing is for sure: if he doesn't ask, he most likely will never know.

Jeffrey: what was your outcome?
SheriC1
(Florida)

Posts:15


08/12/2013 5:04 AM  
I looked again at the plat. You're right: it does not show enough of the land to correctly determine what kind of property Jeffrey owns. But typically, if it is his developer's plat and it says condo association, it would lead me to certainly think he bought in a condominium community. He will have to read his deed to see what he bought.
JohnB26


Posts:0


08/12/2013 5:35 AM  
CAVEAT EMPTOR


blah blah blah .........................................
MatthewW4
(Arizona)

Posts:500


08/12/2013 7:16 AM  
Posted By SheriC1 on 08/12/2013 4:38 AM

Even a Condominium Association MUST show easements, even unto themselves.



Sheri,

I do not think you grasp the concept of an easement. "An easement is a certain right to use the real property of another without possessing it." The key word here is "another." One does not need to grant himself an easement to use property that he already owns.

The fact that there is an easement for a condo association to use a portion of the lot for landscaping tells me that it is unlikely that the association owns the property.

SheriC1
(Florida)

Posts:15


08/12/2013 8:18 AM  
Matthew,

I most certainly do understand easements and how they work. I also understand that if governing documents are silent, then go to the plat and deed. The developer would have stated exactly what was an easement and to whom the easement was dedicated. So, if this was a Condo Community, even what is dedicated to the Condo Community would show up on the plat! If there was private drainage easements, or utility easements, signs, etc... OR LANDSCAPING, it would show to WHOM that easement that land was dedicated and responsible. The landscaping easement says, "70' WD Private Easement for Landscape to Parkland Hills Site Condominium Community Association". To me, in my experience, with something that wide, they're 'hiding' a view of 'something'... most likely a retention pond. They also would most likely want to discourage trespassing.

So, it most certainly could be that the association does on that property or that is is owned by a private party. It could be EITHER WAY. I manage an association and pulled their plat... and any easements at all are listed on all properties: sold or owned by the HOA. HOA's have owned asset property and sold property before. So, easements listed as what belongs to the HOA are important to be listed on a plat. Ex. Asset property has a sign easement on the property for the HOA. The HOA community, decides to sell the property, but wants to keep their sign at that location! So, Yes, Matthew, I do understand easements. I've had to negotiate issues in many easements. It's other people that do not usually understand the power of easements.
KellyM3
(North Carolina)

Posts:1052


08/14/2013 4:40 PM  
Peter,

Easements give the proper authorities the right - yes, the right - to access the drainage pipes as clearly marked according to your report. Any residential amenities built within the easement zone will have to be temporarily relocated in my opinion. A properly vetted neighborhood construction job would not setbacks and easements prior to the location of the job site.
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