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Subject: Easements re: Deeded Roads
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TammyC3
(New Mexico)

Posts:74


03/16/2020 10:03 AM  
Hello,

I'm searching for information on our association's responsibility and authority regarding the easements of our subdivision's dirt roads (New Mexico).

Articles of Incorporation:
"The purpose of the Association being organized is as follows: To provide for the maintenance of the roads within and serving XXX subdivision, XXX county,.. to enforce the CCRs of the subdivision, and to promote the health, safety, and welfare of the residents within the subdivision ...:

*Note - An attorney describe this type of association as "one of those rural road maintenance organizations". Our roads are difficult at their best. 144 lots ranging from 5 acres to 35 acres. The association owns a grader that is utilized by 'volunteers'. A very old grader with a hydraulic leak. Our assn's annual income is $6000.

Disclosure states:
(caps are not mine) "ROADS WITHIN THE SUBDIVISION WILL NOT BE CONSIDERED ALL WEATHER ROADS." (goes on to recommend a 4WD in inclement weather)
"The subdivider shall convey title to the road right-of-ways within the subdivision to the Landowner's Association when XXX number of the subdivision lots have been sold."

*Note: Roads were deeded to Association over a decade ago. 'Fee title to private roads'.

MAINTENANCE:
"When the landowner's association becomes responsible for the road maintenance they shall have sole discretion and determination for the time and manner of maintenance of the roads, except that the subdivider may, but shall not be obligated to conduct such maintenance to such roads as the subdivider deems necessary in the pursuit of their business activities, in the subdivider's sole discretion."

TERRAIN MANAGEMENT:
"The right-of-way for the access for subdivision roads from State Road XXX and County Road XXX and all other roads Rights-of-Ways within the subdivision shall be fifty (50) feet wide. All roadway surfaces within the subdivision will be installed by the subdivider by grading the roadway surfaces to an approximate 18 foot width."

*Our BoD considers:
-Sunny areas are drier days before shaded areas.
-Winter has shown a slower snow melt & evaporation in shaded/canopied areas, creating muddy areas and deeper ruts (that hold water). Over the past decade much money has been spent on gravel, covering approximately 500 running feet of the most traveled/muddiest areas. The gravel is ineffective within 2 years.
-Emergency vehicles getting to a lot = "safety" & "welfare"
- Members who drive in and out to work should be offered our best efforts to get them there.

The BoD has agreed on a plan (with the help of resident volunteers) to trim trees in the canopied, full shade, troublesome areas. Although we regret having to cut any tree at all, we also consider the cost effectiveness of a proactive mission to stop the trouble before it requires rock.
The board also considers their responsibility for all members, not only the residents who live here. This measure insures all members receive our efforts, and not just the residents who go in and out to work each day.

Issue:
- Members who live out of state and vacation to the subdivision have voiced opposition to any cutting of trees present in the road easements adjoining their property.
- Members who reside in the community request they are the only ones who cut in the easements adjoining their property. (Firewood and wood chips). The BoD takes no issue, but is not willing to wait for years for this to happen.

Questions:

Does the Association have authority to cut trees for safety and welfare of members & conduct road maintenance within the 50 foot easement described?

Can roads be widened beyond 18 feet?

RE: Referenced Maintenance by Subdivider.
The Subdivider recently wrote that the roads were a problem and not sightly when realtors were showing their lots.
The BoD reasons that the realtors are the ones who caused the unsightly roads.
Question:
What is the Association's responsibility to large blocks of lots that remain unsold (and pay 1/5 the 'normal assessment'), in remote portions of the subdivision?

Sincerest appreciation for any light you can shed on these issues.

Tammy









JohnC46
(South Carolina)

Posts:9299


03/16/2020 10:08 AM  
Tammy

I say raise the dues and do a better job of road maintenance. Trimming trees is not the same as removing them so trim away.
DouglasK1
(Florida)

Posts:1488


03/16/2020 12:32 PM  
You mention right of way, does the association own the property that the right of way sits on and how wide is the right of way? Your post also suggests that an easement exists on the adjoining lots, how wide is the easement? What is the wording of the easement?

Escaped former treasurer and director of a self managed association.
TammyC3
(New Mexico)

Posts:74


03/16/2020 4:35 PM  
Thank you for your reply.

I misspoke. We do consider removing trees that are impeding the roadway and create a hazard when roads are slippery. There are 15 miles of bad county road before you enter our subdivision and 'road maintenance' is a subjective term out here. We are beyond rural, and considered 'frontier'.
Can you speak to removal of trees that create a hazard?

We are an entirely new board and are of the mind that allowing sunlight and wind on the roads IS doing a better job of road maintenance. Seriously, it's more like trails than roads.

Thanks again,
Tammy


TammyC3
(New Mexico)

Posts:74


03/16/2020 8:08 PM  
Yes. The association is listed as deed holder on county roads - assessed at 35? acres (i think); it's been a while since I looked at that paperwork.

I only have the Disclosure (cited above) to reference at this time. We have a meeting in a few days and I can look at the recorded document then.

In addition our Disclosure states:

UTILITY LOCATION:

NO UTILITIES will be provided to any lot, other than the existing Rural Electric lines already situated within the subdivision. The subdivision road right-of-ways serve as utility easements for power and telephone along with a 15 foot wide easement on the side and back property lines of each lot. Also here is a 20 foot wide utility easement along the entire subdivision boundary. It is permissible to install utilities within the subdivision either above the ground or below the ground.


I use the word 'adjoining' in the broadest sense. Each property has a surveyor pin w/a "T". The top of the "T" being the boundary line facing the road. The land between the T on one side and the T on the other side = 50 feet.

If I am not providing the correct information, please advise!

Thank you very much,
Tammy
DouglasK1
(Florida)

Posts:1488


03/17/2020 6:05 AM  
Posted By TammyC3 on 03/16/2020 8:08 PM

I use the word 'adjoining' in the broadest sense. Each property has a surveyor pin w/a "T". The top of the "T" being the boundary line facing the road. The land between the T on one side and the T on the other side = 50 feet.


So the right of way that the association owns is 50 wide. On that right of way is a utility easement currently used by the power and phone companies. I would think the association would have the right to make the road wider than 18 feet as long as you don't interfere with the utility easement, but IANAL so take that with a grain of salt. Are the trees within the right of way or on lots? If they are on the owners lots, the association is probably within its rights to trim back as far as the property line, but not any further unless the association has been granted an easement for that purpose.

Escaped former treasurer and director of a self managed association.
TammyC3
(New Mexico)

Posts:74


03/18/2020 3:38 PM  
thank you Douglas.

Perfect. We measured between property pins and came up with 50 feet. However, the road itself is not centered within that 50 feet! In some spots we noticed that the road is only 5 feet from the pin! Whoever cut the roads, cut around trees instead of removing them!

We have plenty to keep us busy staying within the 50 ft easement ... maybe next year we can take another look at our cockeyed roads!


thanks again.

tammy
DouglasK1
(Florida)

Posts:1488


03/19/2020 4:57 AM  
It does not sound like the right of way is an easement, it sounds like that is property owned by the association. An easement is where somebody other than the property owner has some right to use a property.

Escaped former treasurer and director of a self managed association.
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