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Subject: Public Pedestrian Easement and HOA R&Rs
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MM14
(Nevada)

Posts:24


06/24/2019 9:08 PM  
The plat registered with the county for our complex shows a walking path, outside of the fenced/gated community, as part of the property but identified as "public pedestrian easement".

Nevada Revised Statutes (NRS) 278.0177 declares streets include public easements, NRS 116.345 and NRS 116.350 (available online) seem to indicate that an HOA "may not restrict, prohibit or otherwise impede the lawful residential use of any property that is within or encompassed by the boundaries of the planned community and that is not designated as part of the planned community."

So can an HOA send a violation notice regarding R&Rs that are only appropriate within the community? The HOA has quite a list of what owners cannot do (ride anything with wheels on streets or sidewalks, including bikes, roller skates, skateboards, mini-bikes, dogs off leash, etc). But can they enforce those rules, in totality, on the "public pedestrian easement"?

I ask because I've received one. Yes, my dog was off leash and yes it's against the local ordinance, but can the HOA send me their own HOA violation notice? Thoughts?
AugustinD


Posts:1969


06/25/2019 1:07 PM  
MM14, I did a little reading about "public pedestrian easements" on the net. I am betting that the HOA cannot impose its restrictions on this "public pedestrian easement." My reasoning is that non-HOA members use this easement at will. Can the HOA send violation letters to non-Members? Of course not. For fun, maybe explain to the Board that you are using the easement as a member of the public, not as a member of the HOA. Explain that your understanding is that the HOA cannot regulate members of the public using this easement in any fashion typical for other public pedestrian pathways.

Else to play the bad cop: I support leash laws. I know of too many dog bites from off-leash dogs.
MM14
(Nevada)

Posts:24


06/26/2019 1:50 PM  
Thanks AugustinD, that's exactly what I did. Thankfully Nevada Revised Statutes specifically address this, so my responding letter quotes chapter and verse of the statute! In case they were in any doubt about "public roads", Nevada also defines public roads to include rights-of-way and easements...so I took the liberty of quoting chapter and verse of those statutes as well. Even included the fact that the easement is registered with the county as a "public pedestrian easement".

Oh, and in case you were wondering, the site's been a bit flaky in the last couple of days, and somehow my post got uploaded twice...hopefully it will get straightened out before too long.

PS: I love the open and honest advice you guys offer! Very helpful! Thank you all!
AugustinD


Posts:1969


06/26/2019 2:39 PM  
Posted By MM14 on 06/26/2019 1:50 PM
Thanks AugustinD, that's exactly what I did. Thankfully Nevada Revised Statutes specifically address this, so my responding letter quotes chapter and verse of the statute! In case they were in any doubt about "public roads", Nevada also defines public roads to include rights-of-way and easements...so I took the liberty of quoting chapter and verse of those statutes as well. Even included the fact that the easement is registered with the county as a "public pedestrian easement".



Nice work, MM14
MM14
(Nevada)

Posts:24


06/26/2019 2:58 PM  
Thanks AugustinD, sometimes it's the little victories. Although I shouldn't celebrate too soon, the CM has a nasty habit of ignoring law.



MM14
(Nevada)

Posts:24


06/26/2019 8:57 PM  
AugustinD, point taken but meant to mention, the dog is 9 lbs poodle heavily trained off-leash. More at risk of being eaten than eating anyone/anything! ;)
MelissaP1
(Alabama)

Posts:8693


06/26/2019 9:40 PM  
That is not point of walking off leash. It is for your dog and other dog protection. My sweet dog was attacked at an off leash dog park area BEFORE she even got in. BIG dog came out and tore into her. Both dogs off leash because it was a no leash area. Luckily dog parent was able to grab their dog before got my dogs throat. She was okay but scared.

I could have lost my dog that day. My fault. You also have to consider other people fear of dogs. My dogs stay leashed and pretty much ignore everything. However, passing people some will seem panicked and walk out of way. Even get dirty eyes. My dogs would never bite or care to be petted much by strangers.

The law looks at you dogs as property not a life. Do you let someone drive your car Without insurance? Why let your dog off leash without having control?

Former HOA President
MM14
(Nevada)

Posts:24


06/27/2019 5:12 AM  
Melissa, the discussion is about the rules and law on easements. I've seen a lot of your posts and you interject your opinions and feelings when people are asking for direction/advice on laws, CC&Rs, Bylaws, and R&Rs.

You are perfectly entitled to your opinion, but in this case, it was not asked for.
BarbaraT1
(Texas)

Posts:240


06/27/2019 10:14 AM  
If you post a question on the internet, people are going to respond.

So did you get a fine or a threat of a fine or are you pulling out chapter and verse because you got a letter asking you not to do it again?
MM14
(Nevada)

Posts:24


06/27/2019 11:51 AM  
BarbaraT1, I got a violation.

...and yes, alas, opinions are out there, but I get annoyed with proselytizing.
JohnT38
(South Carolina)

Posts:122


06/27/2019 2:30 PM  
MM14, I understand what you are saying and I mean no disrespect. However, you readily admit to breaking a local ordinance that is meant to protect the general pubic. The fact that your dog is not mean doesn't mean anything. There is no way for other's to predict which dogs are mean and which ones are not. Therefore the rule is needed regardless of whether it's from the HOA or the local ordinance. My problem is I fail to see why you think you are entitled to break the rules? Why not just comply with the rule and drop it instead of looking for justification that suites your individual need?
MM14
(Nevada)

Posts:24


06/27/2019 3:50 PM  
No disrespect taken....HOWEVER, my question, regardless of what the violation is, was about HOA rights on county registered public easements PERIOD.

They also have a no bicycle rule, so if they are going to enforce, they are legally bound to enforce all the rules.

I am NOT fighting their right to call animal control and have the county issue me a ticket. BUT the last time I saw a policemen go after a poodle, the guy apologized to the owner and DID NOT issue a ticket, DID NOT give a warning, or anything else. He actually told the guy to walk in the opposite direction of the neighbor who complained (this was not me and in another State).

You all are perfectly entitled to give me your opinions, and I am perfectly entitled to tell you that you are missing the ENTIRE POINT.

Enough already with the proselytizing! SMH
JohnT38
(South Carolina)

Posts:122


06/27/2019 4:42 PM  
The motto of HOATalk.com is "A positive place for community association leaders to share ideas and learn." Therefore, any question that is asked here is fair game for a general discussion if it helps share ideas and learn from them. You openly admit you are wrong and are asking for advice to circumvent the rules because you feel you are not subject to HOA or local ordinance rules. You can dance around this all you want but it is what it is. I have only served on my HOA board for a year but I've quickly learned that residents that seek to circumvent rules because of a sense of entitlement are a threat to the very reason that HOA's exist in the first place. Are HOA's perfect? No. Are their examples of rules that need to be changed? Yes. However, in your case you are seeking advice to stir up trouble even though you are in the wrong and you don't even pretend to hide it. Others may disagree but I see no reason to help you since it is counter productive.
MelissaP1
(Alabama)

Posts:8693


06/27/2019 5:00 PM  
Think the point is that someone called you out for walking your dog unleashed in a public area viewed by the HOA membership. Again I don't believe dogs should be off leash at anytime except in your own back yard or in designated dog play area. It irritates me to no end to see someone so cocky as to walk their dog off leash as if that is some kind of fancy trick. It's not. Most people take that as pompous when they see someone "controlling" their dog off leash. What's the point other than to show off your controlling skills over a dog?

A neighbor was walking her dogs on leashes outside our HOA on the sidewalk. (Public sidewalk by road). 2 dogs from another neighborhood had gotten loose. They came up to her dogs and killed 1 of them. The other she was able to grab. She was also bitten. The dogs had a history with animal control. I was President at the time. Completely helpless in helping her. The attack did not happen in the HOA. It gave her less power to hold the dog owners responsible for her dog's death/attack.

So what would happen if your dog was truly attacked? How would you react and/or demand of your HOA then?

Former HOA President
JohnC46
(South Carolina)

Posts:8807


06/27/2019 5:02 PM  
While MM was a dickhead having her dog roam free the real question is does the HOA have authority outside the HOA on the public walkway? I say they do not.

Should the municipality fine and maybe imprison MM? Yes. Is it the HOA's business? No.
RoyalP


Posts:0


06/27/2019 5:22 PM  
devil's advocate:

it is NOT a public walkway

the public has an easement to use the HOA's walkway

the OP is an HOA member bound by the HOA's covenants and restrictions

said member is in violation



case closed
NpS
(Pennsylvania)

Posts:3841


06/27/2019 6:48 PM  
Posted By RoyalP on 06/27/2019 5:22 PM

it is NOT a public walkway
the public has an easement to use the HOA's walkway
the OP is an HOA member bound by the HOA's covenants and restrictions
said member is in violation



Sounds about right to me. HOA has authority over members but not the public.

Sikubali jukumu. Read all posts at your own risk.
MM14
(Nevada)

Posts:24


06/27/2019 8:03 PM  
Nope, not case closed. Nevada Revised Statutes state otherwise. And, should they decide to navigate the other avenue, they'd have problems with the other NRS that states if you don't enforce consistently, you cannot enforce.
NpS
(Pennsylvania)

Posts:3841


06/27/2019 8:32 PM  
Posted By MM14 on 06/27/2019 8:03 PM
Nope, not case closed. Nevada Revised Statutes state otherwise. And, should they decide to navigate the other avenue, they'd have problems with the other NRS that states if you don't enforce consistently, you cannot enforce.




Sounds odd to me.

My community is one of 3 created when a farm was carved up. According to the original organizing docs, every owner in any of the 3 communities has an easement onto the common grounds of the other 2.

We enforce violations against our community members only. We have no authority over owners from our 2 neighboring community members.

Does that mean that under NRS, we wouldn't be able to enforce against anyone? Not even our own members?

Sikubali jukumu. Read all posts at your own risk.
MM14
(Nevada)

Posts:24


06/27/2019 9:06 PM  
...and ran it past a lawyer who verified.
MM14
(Nevada)

Posts:24


06/27/2019 9:07 PM  
This particular stretch is recorded with the county as a "public pedestrian easement".
MM14
(Nevada)

Posts:24


06/27/2019 10:08 PM  
Regardless of anyone's opinion, the question was posed, my facts were honestly provided (I've seen many withhold germane facts and be condemned for it). I am beginning to understand why some withhold...damned if you do, damned if you don't.

I managed to get info because of the help of some and despite the criticisms of others. The problem with enforcement is that if they are going to enforce, they will have to enforce all of their rules and in a consistent manner. That has been my point and question this entire time despite the continual bashing.

NRS 116.350.1  "In a common-interest community which is not gated or enclosed and the access to which is not restricted or controlled by a person or device, the executive board shall not and the governing documents must not provide for the regulation of any road, street, alley or other thoroughfare the right-of-way of which is accepted by the State or a local government for dedication as a road, street, alley or other thoroughfare for public use."

NRS 116.31065.5 Rules "Must be uniformly enforced under the same or similar circumstances against all units’ owners. Any rule that is not so uniformly enforced may not be enforced against any unit’s owner."

The following is directly quoted from the R&Rs and if they choose to enforce one, they must enforce all the rest of these:

“Items that may be thrown or flown shall not be used on the Property.”
“Riding of wheeled activity devices on streets or sidewalks is prohibited.”
“Residents may not partake in the following activities in the Greenbelts or Common Areas – Football, kickball, baseball, volleyball, badminton, golf, basketball, paddle ball, motorcycles, mini-bikes, bicycles or any other wheeled-activity devices.”

Despite all of the nonsense thrown my way, a few of you have been helpful, and for that, thank you. The rest of you,however, won't be happy until I beat my chest in a heartfelt mea culpa. So sorry to disappoint!
KevinS19
(Illinois)

Posts:1


06/28/2019 10:05 AM  
Holy f***k! I signed up to offer help where I could. I'm not sure most of you don't sound like just another bully HOA.

Best quote is the assh**e who quotes an environment of discussion then you all jump on like pirhana during a feeding frenzy.

People, read what you've written, and if any of you are without fault...ever... then have a turn at the wack-a-mole, otherwise, shut the f***k up and get a life!

I'm out of here; ain't no one got time for this shit!
MelissaP1
(Alabama)

Posts:8693


06/28/2019 11:14 AM  
Thank you. Don't have it in me for it either...

Former HOA President
JohnT38
(South Carolina)

Posts:122


06/28/2019 11:47 AM  
Don't let the door hit you on the way out...
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