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Subject: Who Owns the Sidewalks?
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JohnA10


Posts:0


08/15/2011 5:31 PM  
The subdivision plat for our community shows that the road and curbs are located within “Tract A.” Sidewalks are located on private lots, adjacent to the curb, in an “8-ft Public Utility and Sidewalk Easement.” Lot corners are identified by survey-marks etched into the concrete at the sidewalk/curb interface. Property taxes are paid based on the property boundaries shown on the plat of record.

The original Declaration identified the Common Area as “Tract A according to the plat of record.” The Declaration and plat were recorded as separate documents.

Several years ago, the Association rushed-through, adopted and recorded a completely revised Declaration. The revised Declaration now defines the Common Areas as “Tract A (which includes the sidewalks) according to the plat of record.” The words in ( ) were added in the revised Declaration. Elsewhere in the Declaration it now states “The sidewalks are owned solely be the Association.”

I challenged the Association’s claim of sidewalk ownership during the drafting of the revised Declaration, but was labeled a trouble-maker. After the Declaration was recorded, I asked the Board to furnish any evidence, whatsoever, that the sidewalks were owned by the Association. Nothing was provided other than: “We always thought we owned the sidewalk.”

I then sent the Association a certified letter requesting that the claim of sidewalk ownership be removed from the record. The Association’s attorney responded with a letter saying that the Association owns the sidewalk because the Declaration now says they own it. The letter goes on to say that the Association owns the sidewalk but not the land under the sidewalk. There was no explanation for the resulting conflict between the information on the plat and the information in the Declaration. (I suspect the attorney is trying to cover her tail after missing this during her review of the revised Declaration.)

Before paying for my own attorney, I’d like to tap the brains of the Forum Members. Am I missing something here? Is there some rule of law which allows the Association to take ownership of my sidewalk simply by amending the Declaration? Which document prevails in the event of a conflict – the subdivision plat or the Declaration? What legal actions can I take to get this resolved?

Thanks in advance for any wisdom you can provide.
HoaC
(Florida)

Posts:95


08/15/2011 5:36 PM  
IMHO they did you a favor. If you own the sidewal you are responsible for the upkeep. I would keep that letter from the attorney on file. In a hundred years, when the sidewalk is cracked and damaged, you have them to repair / replace it in fornt of your home on the top of the soil you own. You were handed a blessing IMHO.
TimB4
(Virginia)

Posts:17766


08/15/2011 6:26 PM  
John,

Take a look at your deed and/or plat. There is probably something in there about easements. The easement is typically for sidewalks, roads, utilities, etc..

As an example:

Lets say I own property. There is an easement on the property for a road. The county built the road and maintains the road. I still own the property the Road sits on but because of the easement, I can never really do anything with that property.

The good news is that you don't have to repair the sidewalk when it cracks or sinks as the Association has documented that they are responsible for the sidewalk upkeep.

Tim

HoaC
(Florida)

Posts:95


08/15/2011 6:33 PM  
Tim, that is what I was trying to convey. Gr8 advise! as usual.
JohnA10


Posts:0


08/15/2011 6:59 PM  
The plat shows an easement on my property which is labeled “8-ft Public Utility and Sidewalk Easement.” When I purchased the home, new in 1984, the builder showed me the survey marks and told me the sidewalk was on my property and was mine.

I don’t believe the Association can take ownership of the sidewalk any more than they can take ownership of the power lines, transformers, phone lines, cable lines or city water lines within the easement. The association has no title to the sidewalk and has never paid property taxes for the sidewalk or anything else within the easement.

Given the choice of ownership and liability for the sidewalk on my property versus shared ownership and liability for all the sidewalks in the association – which may or may not be maintained – I’ll take the former so that, at least, I can control my own destiny.
TimB4
(Virginia)

Posts:17766


08/15/2011 7:28 PM  
John,

Don't think of it as taking ownership. Think of it as taking responsibility for the Sidewalks. You still own the land.

Since your plat indicates the easement and your CC&Rs were amended for the Association to take responsibility of the sidewalks that are on your property (in addition to any on the common property), I suspect that this is the way it will be.

I certainly understand your desire to take control of things that are on your property vs. having a shared responsibility for items that are not on your property. However, this is the way life typically is when you are living within an Association.

Expecting that you don't want to move, the best thing to minimizing an Associations impact on you is to become involved with the governing of the Association. I know it sounds odd that to minimize the impact you need to devote some of your spare time to serve within the Association (sort of a Catch 22). However, that is the best way that I know of.

Tim

HoaC
(Florida)

Posts:95


08/15/2011 8:13 PM  
Tim,
It appeared from his first post and his second post that his mind was already set to the answer he wanted to hear. I agree with your analogy of this. He did not get the message in 3 post. Time to move on.

John, my free advice is, find an attorney and sue yourself, as you are the association. This way you will pay 2 attorneys for the sidewalk so you can repair it.
If I was the association BODs, I would gladly assign you the property, the sidewalk and pray everyone else wanted theirs as well.
But, since they "own" the sidewalk and if I felt as strongly as you do and I lost the court battle, I would complain about the grass along the edges and the grass growing in the cracks and even the dirt on the sidewalk. So I could become the best sidewalk tenant they had monitoring it.
Seriously.
Tim and I gave you some sound advice. It was free. You can toss it out if you like. Consult an attorney would be your best interest.
LarryB13
(Arizona)

Posts:4099


08/16/2011 2:30 AM  
You purchased your property subject to the recorded easements. An easement is permission given by the property owner allowing another party to use a portion of the property for some specific purpose. In this case, the easement is not only for the sidewalk but also for utilities.

If you dig up the part of your yard where the easement is you may find buried electrical cables, water pipes, sewer pipes, phone lines or cable tv. You don't own those utilities even though they are on your property. The only difference between the sidewalk and the utilities is that you can see the sidewalk.

I would concur with those who said the HOA has done you a favor by taking ownership of the cement slab that lies on top of the ground in the sidewalk easement. It is now the HOA's responsibility to maintain the sidewalk.

I have no doubt that the developer told you the sidewalk was yours. He wanted to avoid responsibility for maintaining it. The HOA's lawyer has stated the case correctly, you own the ground under the sidewalk and the HOA owns the concrete slab on top of it. Because of the easement for a sidewalk, even if you did own the slab you cannot lawfully prevent others from using it. By its very nature the sidewalk has always been a common area and the revised CC&R's changes nothing except to clarify who is responsible for the slabs.
DonnaS
(Tennessee)

Posts:5671


08/16/2011 10:05 AM  

John,

I have found that in most newer HOA documents, the explaination for the sidewalks is under "Easements". My HOA has a 10 foot easement done from the curb inward which happens to end at the sidewalk line. Despite the fact that I own the curbside lawn, must maintain it at all times, it is not mine to alter because it is included in the easement.

Our sidewalks which are all pavers belong to the HOA BUT each owner is required to seal them, repair them and basically keep them in good condition. Failure to do so will result in the association doing the maintenance and being billed for the work. Failure to pay the bill results in a special assessmant against the individuals property. I take care and they claim rights to it. Same as yours is. It may not seem right but it is written in the covenants and that is the way it is. Now any sidewalk coming off of the main sidewalk belongs to me, like the walk to the front door and the driveway so that is personal property.
JohnA10


Posts:0


08/16/2011 11:20 AM  
Thank you all for your helpful comments. Now, I’m really confused.

LarryB – are you saying that the association owns everything on the surface of the 8-ft utility and sidewalk easement, even though the easement is on my property and not on the association’s property? Do they own the landscape materials that I placed there? Does it matter that the sidewalk wasn’t built until I bought the house? I don’t see how the association came to own the sidewalk. The subdivision plat and tax records show me as the owner. I can’t find anything, in writing, which gives ownership of the sidewalk to the association. Could you explain what you mean by: “By its very nature the sidewalk has always been in the common area?” If that were true, wouldn’t the easement itself be in the common area and not on my lot as shown on the subdivision plat? If that were true, the association wouldn't need to change the declaration to clarify that they own the sidewalk - would they?

I really appreciate your comments, and I hope this discussion is useful to other Forum Members.
GlenL
(Ohio)

Posts:5491


08/16/2011 12:41 PM  
John if you want to pay to repair replace the sidewalk I'm sure your HOA won't complain. Oh yeah if someone falls on the sidewalk and breaks their leg, I'm sure the HOA won't mind if you accept responsibility for that too.

Studies show that 5 out of 4 people have problems with fractions
EdC5
(Florida)

Posts:117


08/16/2011 1:20 PM  
Posted By JohnA10 on 08/16/2011 11:20 AM
Thank you all for your helpful comments. Now, I’m really confused.

LarryB – are you saying that the association owns everything on the surface of the 8-ft utility and sidewalk easement, even though the easement is on my property and not on the association’s property? Do they own the landscape materials that I placed there? Does it matter that the sidewalk wasn’t built until I bought the house? I don’t see how the association came to own the sidewalk. The subdivision plat and tax records show me as the owner. I can’t find anything, in writing, which gives ownership of the sidewalk to the association. Could you explain what you mean by: “By its very nature the sidewalk has always been in the common area?” If that were true, wouldn’t the easement itself be in the common area and not on my lot as shown on the subdivision plat? If that were true, the association wouldn't need to change the declaration to clarify that they own the sidewalk - would they?

I really appreciate your comments, and I hope this discussion is useful to other Forum Members.




Easements are the most common "restriction" of land ownership yet the most misunderstood by people purchasing land. Here is a short explanation:


Although the actual property lines are defined within a survey, under certain circumstances the boundaries may be crossed, with or without the owner’s permission. An easement allows another person, or municipality to encroach upon your property. There are different types of easements, which have specific legal purposes. A Real Estate Lawyer can go more in depth about easements.

Property easement is a right to use some part of a property for a specific purpose. A survey will define the property lines to hopefully prevent any questions of land ownership.

An express easement may be contained in the deed to the property or in another document. Some examples include:

* A utility company can run power lines on a property
* Adjacent property owners may enter into an agreement to share a common driveway that extends over both properties.

In your case the sidewalk falls within the easement. So while your property line extends to the end of your lot, you cannot do anything that impedes the easement. For further info check out "easements" on Wikipedia. http://en.wikipedia.org/wiki/Easement


Edward J Cooke, CMCA, LCAM
BruceF1
(Connecticut)

Posts:2535


08/16/2011 1:48 PM  
John,

You simply don't understand what an easement is.

Did you pay or hire someone to install the sidewalk? No? Then it ain't yours, period. The sidewalk was installed within the bounds of an easement which granted the right to build a sidewalk on your land. That right existed before you purchased the land. It doesn't matter whether the sidewalk was there before you purchased the land or if it was put there later. It doesn't matter what your builder told you. Does the deed to your property state you own the sidewalk, or does it state there is an easement across your land upon which a sidewalk may be built? If the builder put in the sidewalk it was his until he turned it over to the association as part of the common elements, and then it became theirs.

The changing of the declaration to add the statement "including sidewalks" with reference to the common elements was nothing more than formalizing the fact that maintaining the sidewalks and the liability in the event of an accident within the bounds of the sidewalk are now the association's responsibility, the same as all other common elements. It was not some shady overnight change to take ownership of the sidewalk away from you because it was never yours to begin with.

We have a similar (actually, nearly identical) situation within our own association. The property that borders the main highway in front of our development is owned by a dentist who has his practice in a small office building in front of our property. We have an easment across the dentist's property for a road between the highway and and the main entrance to our community. The dentist owns the land, but we own the road. Therefore, we maintain the road. In the winter, our contractor plows the road. When the road needs repair, it will be the association's responsibility to repair the road. This is true, even though the dentist and his patients use our road across his property to get to his parking lot.

That's the way easements work.
HoaC
(Florida)

Posts:95


08/16/2011 2:41 PM  
Your question is "Who Owns the Sidewalks?"
The answer is "The Association"
Your question is - Who owns the dirt the sidewalk rest upon?
Answer is "you do"
Your question is - Who Maintians the sidewalk and provides insurance coverage?
Answer, "The Association does"
Your question is - Who owns the sewer drain under the sidewalk that is under your dirt?
Answer is They do
My Question is - Do you get it?
Answer is - ?
BradP
(Kansas)

Posts:2640


08/16/2011 2:44 PM  
I don't think we all need to be so hard on people on here...a question was asked, answers were given, so be it. The negative connotations just prevent novice people from asking legitimate questions for fear of reprisal...talking from experience there are a lot of people who know nothing about how associatios work but are willing to learn and ask questions.
JenniferM10


Posts:0


08/16/2011 3:04 PM  
Well said Brad.
HoaC
(Florida)

Posts:95


08/16/2011 8:40 PM  
I gave him good advise in the first post. Tim came back with the same answer better explained. Several others posted the same basic explainations. The original poster did not get the answer he liked and basically kept argueing the point when he doesn't have a point. He did not get the response he wanted so he continued. And still recieved the same answers. 3 times. So, it isn't a negative overtone. It is simply, you got the answer 3 times from 3 different people. So, I posted the most simple answer to his simple question. You don't always get the answer you want to hear.
Sorry I offended anyone.
PreciseE
(New Jersey)

Posts:6


08/17/2011 2:42 AM  
That is actually great man!!
DonnaO1


Posts:0


08/18/2011 11:40 AM  
We’re new to the forum. Our situation is the exact opposite of John’s. Our sidewalk is also in an easement next to the curb, and the subdivision map shows the common area stopping at the curb. The sidewalk in front of our home is badly damaged. We asked the HOA to repair it. The HOA refused. They said that the sidewalk was on our property. They said that it was our responsibility to repair it. They said that the CCR’s prohibit spending money on repairs outside of the common area. They said that the only way they could own the sidewalks was if everyone in the HOA agreed to give the sidewalks to the HOA. The said that they talked to their lawyer about this – attorney/client privilege, so who knows. This was all said at a board meeting. Last week, the HOA sent us a letter saying that we must repair the sidewalk or they will fine us or repair the sidewalk and send us the bill. What can we do? Is there anything we can show them that proves that HOA must repair the sidewalk. Thank you.
TimB4
(Virginia)

Posts:17766


08/18/2011 3:21 PM  
Hi Donna,

Welcome to the forum.


You Association is correct that they may only spend money to maintain the common area. That is unless the CC&Rs specify that they are to maintain all the sidewalks. In the original posting, John specified that his Association's governing documents specified that the Association was to maintain the sidewalks. What does your CC&Rs say about responsibility of the sidewalks? Is it even mentioned?


Tim
BruceF1
(Connecticut)

Posts:2535


08/18/2011 4:14 PM  
Tim,

That is correct. The sidewalks in Donna's case may not be common property.

In John's case, the declaration was changed to make it clear that the sidewalks were the association's responsibility. Unfortunately, John interpreted that action to mean the association was taking his sidewalk away from him.

My driveway belongs to the association. I'm glad. In the winter, they plow it. When it breaks down, they will fix it.
DonnaO1


Posts:0


08/18/2011 6:20 PM  
We have a big copy of the map. The arrows on the common area stop at the curb. We carefully read the CCRS and can’t find anything about taking care of the sidewalks by the HOA or by us.
TimB4
(Virginia)

Posts:17766


08/18/2011 6:26 PM  
Based on that information, I would say that each member would be responsible for the sidewalks on their property.

Has the Association repaired the sidewalks on non common areas in the past?

Tim
MartinW


Posts:0


08/21/2011 12:53 PM  
I have monitored this site for years. Since no one else has commented in support of John’s position, I was compelled to join the forum and add my opinion. I am retired from a career as a right-of-way agent with a state highway department. John’s concerns are well-founded. His HOA acted improperly and, possibly, illegally. The opinions of BruceF1, HoaC, and other’s were uninformed, and the hostile, self-righteous, tone of their responses was unjustified.

John’s original question was “Who Owns the Sidewalk?” John provided the following information:

1. The subdivision plat and original declaration identify the common areas as “Tract A.”

2. The subdivision plat identifies “Tract A” as the streets and curbs (not the sidewalks).

3. The subdivision plat shows a public utility & sidewalk easement on John’s lot, adjacent to the curb.

4. The subdivision plat and declaration were recorded as separate documents.

5. The sidewalk was constructed when John purchased the house. (John paid for the sidewalk.)

6. In spite of John’s objections, the association amended the declaration to state that Tract A “includes the sidewalks” and “the sidewalks are owned solely by the association.”

7. The association did not modify the plat to show that the sidewalks are in “Tract A.”


In my opinion:

1. The association does not own the sidewalk. The association only owns the property located within the boundaries of “Tract A” as shown on the plat.

2. Only “Tract A” (without the sidewalk) was conveyed, from the developer to the association, because the original declaration defined the conveyed common area only as “Tract A.”

3. Since, the sidewalk was not conveyed to the association, and since the association did not construct the sidewalk, the association does not own the sidewalk. The association has never owned the sidewalk.

4. Had the association constructed or repaired the sidewalk, it would likely have violated its own covenants which prohibit improvements outside the common area.

5. The association may not change the boundaries of the common area simply by voting to modify the declaration.

6. By amending the declaration, the association created a conflict between the plat and the declaration. The plat identifies “Tract A” as streets/curbs. The amended declaration identifies “Tract A” as streets/curbs/sidewalks. (The information on the plat takes precedence. See comments by RogerB, and others, in May 2007.)

7. The easement grants members of the association the right to traverse the easement. It does not convey, to the association, ownership of the concrete or any other property within the easement.

8. The association may have violated state statutes by recording a false claim of ownership. The association may have exacerbated the problem by willfully continuing the claim, in spite of John’s objections.

9. The attorney’s claim that “the association owns the sidewalk, because the declaration now says they own the sidewalk,” lacks merit and is contradicted by what is shown on the official plat-of-record.

I think John has a viable case against his HOA. He shouldn’t be dissuaded by ill-informed opinions expressed in this forum. If John goes to court, he will have a plat, survey, title, title report, tax records, purchase agreement (and his construction contract?) to support his argument. The association will have . . . what? . . . the opinions of BruceF1 and HoaC ? John won’t be wasting money by consulting an attorney. In fact, it might turn out to be quite profitable for him.

Good luck John.
LarryB13
(Arizona)

Posts:4099


08/22/2011 12:46 PM  
I wanted to clarify a statement I made above. I wrote, "By its very nature the sidewalk has always been a common area and the revised CC&R's changes nothing except to clarify who is responsible for the slabs."

There are several ways to create common areas. One is to simply deed the common area to the HOA and another is to grant easements that everyone may use. In this case, the developer deeded streets and curbs as common areas (called "Tract A") and granted easements for sidewalks and utilities on the lots next to the streets.

I did not mean to imply that the sidewalks are now or ever were a part of Tract A. What I meant by "the sidewalk has always been a common area" was that the sidewalks were always available for use by by all by virtue of the easement over the lots adjacent to the street.

The revised CC&R's should have been clarified to state explicitly that the HOA does not own the easements for the sidewalks.
ValerieR3
(Maryland)

Posts:1


06/30/2017 3:03 AM  
Hello Martin,

We have the opposite problem. Most row home tracks in our community have backyard access sidewalks, like an alley, except those that back up to a city road. I believe there is a 10 foot easement from the city/county road to our back fence. There is grass (maintained by the HOA) and I have mentioned to the HOA board that we would like a sidewalk so we can safely take the trash to the front for pick-up. The response was that it's County property, and we would need to ask the county to install it.

The County used to pick up trash in the back and it wasn't an issue then. I don't like dragging our bins through the uneven, dog turd grass and don't like walking down the road either. Do we have the right to press for a sidewalk?

I had installed an inconspicuous gate (when we replaced the whole fence) to the side of our house which gives me access to the neighbors sidewalk and I take the trash around that way. Separate HOA issue, but our fence was approved by the HOA 2 years ago, and you cannot see the gate unless you look over the fence to see the hardware.... I witnessed a board member do this after some lovely neighbor complained about our secret entrance.

We don't know if we have any leverage since they approved our fence as is And if they press us to permanently close our gate, do they need to grant us safety?

We have never been in HOA arrears and I am in the process of getting on the deed (recently married) to get on the board myself.

Your input is welcome.

-Valerie

MelissaP1
(Alabama)

Posts:10521


06/30/2017 4:18 AM  
This is a very old thread. (2011). Please open a new topic to get the best response. Thank you.

Former HOA President
JanetB2
(Colorado)

Posts:4211


06/30/2017 9:25 PM  
Posted By n/a on 08/16/2011 11:20 AM
Thank you all for your helpful comments. Now, I’m really confused.

LarryB – are you saying that the association owns everything on the surface of the 8-ft utility and sidewalk easement, even though the easement is on my property and not on the association’s property? Do they own the landscape materials that I placed there? Does it matter that the sidewalk wasn’t built until I bought the house? I don’t see how the association came to own the sidewalk. The subdivision plat and tax records show me as the owner. I can’t find anything, in writing, which gives ownership of the sidewalk to the association. Could you explain what you mean by: “By its very nature the sidewalk has always been in the common area?” If that were true, wouldn’t the easement itself be in the common area and not on my lot as shown on the subdivision plat? If that were true, the association wouldn't need to change the declaration to clarify that they own the sidewalk - would they?

I really appreciate your comments, and I hope this discussion is useful to other Forum Members.


Your postings do not note which State you are from. Potentially your Local Government Statutes and State Laws can determine the answer to your questions. In my last HOA each owner was responsible for the sidewalk in front of their property, due to the deed allocated that property to the individual owners. My local City does have a fund which will assist owners with sidewalk repairs if needed. If in past this was an Owner / City funds to be used for repairs and your HOA took on the responsibility ... I am not sure what your issue is ... if the HOA wants to take on that responsibility while I myself might think is stupid ... potentially let them make your day.
DouglasK1
(Florida)

Posts:1680


07/01/2017 6:10 AM  
Posted By JanetB2 on 06/30/2017 9:25 PM
Posted By n/a on 08/16/2011 11:20 AM
Thank you all for your helpful comments. Now, I’m really confused.


Your postings do not note which State you are from. ...


Many of the posters from this thread back in 2011 are no longer active on this forum.

Escaped former treasurer and director of a self managed association.
JanetB2
(Colorado)

Posts:4211


07/01/2017 8:35 PM  
Posted By DouglasK1 on 07/01/2017 6:10 AM
Posted By JanetB2 on 06/30/2017 9:25 PM
Posted By n/a on 08/16/2011 11:20 AM
Thank you all for your helpful comments. Now, I’m really confused.


Your postings do not note which State you are from. ...


Many of the posters from this thread back in 2011 are no longer active on this forum.


LOL ... Sorry did not notice due to couple other postings after Valerie that she activated a very old thread. Valerie ... this thread is very old ... if you have a question or concern it would be better to start a new thread ... . Thanks Douglas ... good catch!
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