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Subject: Closing public access trail located in private park
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Author Messages
HenryS6
(Arizona)

Posts:111


08/23/2021 7:58 AM  
The HOA owns a private park, signed as such, for residents use only. Many years ago, trail builders illegally built a trail on county land for mountain bikers to use for mountain biking. By illegally, the trail was built by volunteers without authorization from the county.

Today, the board of directors of the association that owns the park is looking at closing the trailhead. They say that, since the trail crosses an existing basketball court, that kids aren't able to play basketball because of the trail users. They would like to put in additional features in this part of the park that would be attractive to little kids, and they directors are concerned that there might be a collision between little kids playing on the new playground equipment and mountain bike riders riding through the park.

The board has approached the county with the request to move the trailhead to another location where the county land directly fronts the street and then trail users would not need to ride through the private park for mountain biking. Because of bureaucratic policy, the county is unable to do so, and unable to permit volunteers to move the trail.

The county would prefer to leave the trail where it is, but have the association donate a trail easement to give the public the right to cross the private park in the future.

The mountain bike trail is popular among the public but not as popular among homeowners. Out of 300 homes, probably less than 10 homeowners use the trail on a regular basis.

What are your thoughts?

A picture of the park with the trail is attached. The route that the riders normally take is marked with red dots.

Attachment: 1823582817271.pdf

AugustinD


Posts:1920


08/23/2021 8:11 AM  
Would the HOA Board consider installing a fence with gate (no lock) or similar bike-stopping obstruction?

How cute that the County flipped everything and suggested the HOA grant an easement.

I think the stakes here are high enough that I would get the HOA attorney involved. The public using this private property as if there were an easement poses liability problems in my opinion. Also, if used long enough in this fashion, is there a chance common law (court made law) declares it becomes a de facto easement? I have seen this before in some situations.
LetA
(Nevada)

Posts:1466


08/23/2021 11:33 AM  
Simple, put on your meeting agenda to solicit bids to erect a fence that blocks access to the property and post no trespassing sings and cite the state statute for trespassing on the signs. I agree with Augie, having non owners on private property is a recipe for lawsuits if someone gets injured.
CathyA3
(Ohio)

Posts:2599


08/23/2021 11:59 AM  
If the HOA owns the land, then this is a big liability issue for the HOA, as Augustin mentioned. You're probably under-insured.

I agree that the HOA should lawyer up, talk to their insurer, and figure out its options. I'm sure there will be push back from those who used the trail if they lose access, ever mind that they had no right to it in the first place, and the HOA should be prepared to deal with the fallout. If the HOA's board is tempted to grant an easement, the board should address the liability issue and push for concessions from the county in exchange. And would such an easement or the trail itself need to be approved by the membership since these things probably aren't mentioned in the CC&Rs?

(Personal opinion: those concessions would need to be mighty attractive because of the potential problems of opening private property to the public, including loss of use of the HOA's own property and increased costs to insure the property. The county's bureaucratic issues are not the HOA's problem to solve.)

DouglasK1
(Florida)

Posts:1689


08/23/2021 1:23 PM  
Certainly from the county's perspective, doing nothing is easiest. Maybe if you close access, lots of people will complain and the county will feel a bit more pressure to act.

Escaped former treasurer and director of a self managed association.
JohnT38
(South Carolina)

Posts:794


08/23/2021 1:31 PM  
Did the original developer grant the city some type of permanent easement for outsiders to use this trail?
AugustinD


Posts:1920


08/23/2021 1:37 PM  
Posted By AugustinD on 08/23/2021 8:11 AMThe correct term is "prescriptive easement."
HenryS6
(Arizona)

Posts:111


08/23/2021 2:18 PM  
Posted By JohnT38 on 08/23/2021 1:31 PM
Did the original developer grant the city some type of permanent easement for outsiders to use this trail?




No, the trail didn't exist when the developers built the subdivision. It was created sometime after the development was created by mountain bikers who recreated in the area. I have checked plat maps and there are no recreational easements per the plat maps and recorded documents.
JohnT38
(South Carolina)

Posts:794


08/23/2021 3:03 PM  
Posted By HenryS6 on 08/23/2021 2:18 PM
Posted By JohnT38 on 08/23/2021 1:31 PM
Did the original developer grant the city some type of permanent easement for outsiders to use this trail?




No, the trail didn't exist when the developers built the subdivision. It was created sometime after the development was created by mountain bikers who recreated in the area. I have checked plat maps and there are no recreational easements per the plat maps and recorded documents.




That's great. I would definitely suggest that you call your HOA insurance agent and have a chat about the liability issue. Good luck!
LetA
(Nevada)

Posts:1466


08/23/2021 5:19 PM  
I see on the photo you provided the red dots on asphalt. then some red dots go on a dirt trail past the basketball hoop. is that dirt trail county or HOA property?
GregM14
(Washington)

Posts:77


08/23/2021 6:56 PM  
Posted By LetA on 08/23/2021 5:19 PM
I see on the photo you provided the red dots on asphalt. then some red dots go on a dirt trail past the basketball hoop. is that dirt trail county or HOA property?




HOA property.

It's really unfortuanate that the trail runs right through the basketball court. Kids can't play basketball because adult mountain bikers are always riding through the court.
AugustinD


Posts:1920


08/23/2021 7:29 PM  
Posted By GregM14 on 08/23/2021 6:56 PM
It's really unfortuanate that the trail runs right through the basketball court. Kids can't play basketball because adult mountain bikers are always riding through the court.
I agree and then some. Plus when some adult mountain biker hits a kid and sends her flying, then the lawyers will be lining up.

If I were on this HOA's Board, I'd be pretty fierce about stopping the mountain bikers from trespassing further. As in, "I move to get the HOA attorney on the line right now."
TimB4
(Tennessee)

Posts:17852


08/23/2021 8:34 PM  
I agree with others, build a fence and check with your attorney for proper signage and, perhaps, a press statement (if needed when others complain).

You might also need to hire some off duty police officers for a few weekends to issue trespassing warnings (and if needed citations) until those who use the trail get the message.
WilliamC21
(New Jersey)

Posts:4


08/24/2021 6:06 AM  
Why not build a chain link fence around the basketball court with unlocked bur self closing gates? This would keep the riders out and keep the players safe.
PatJ1
(North Carolina)

Posts:295


08/24/2021 7:27 AM  
Posted By WilliamC21 on 08/24/2021 6:06 AM
Why not build a chain link fence around the basketball court with unlocked bur self closing gates? This would keep the riders out and keep the players safe.




That suggestion would still allow public access to the dirt path through the HOA for access. Not to mention cause additional cost to the HOA to build a fence completely around the courts.

There WOULD be an HOA cost to fence public access across the path. Public should not be using the path on HOA property and opening up the HOA to liability. Closing public access with a fence would put an end to the issue.



Board members are volunteers. Many have no idea what they're doing. Educate them. Don't beat them up.
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Forums > Homeowner Association > HOA Discussions > Closing public access trail located in private park



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