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jrbarnard
Member
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# Posted: 22 Oct 2013 02:07pm
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So.. I have a ranch in a Property Owner's Association. Essentially, it is 59 tracts of land that make up about.. 7000-8000 acres and we own 4 tracts that make up 331 of those.
Here is my delima:
We bought "end of the road" land. The roads are supposed to be maintained by the PoA and we pay a yearly fee for that maintenence. Simple enough, right?
Well, we do not have a gate at the front of our tracts, although we have toyed with adding one, but a gate means we would be responsible for the road maintenence. Not a huge deal, and I do not think that is a written rule.. but ... whatever.. it is there..
The past couple of weekends, I have stopped 2 people that were driving around on the road into our place.
Now, if we only owned ONE tract, then 3 other owners would have access to that road. As it is, we own both sides of the road for quite a ways.
The PLAT states that the roads are "perpetual private access easements for the benefit of the owners of the tracts or lots within the subdivision".
My thoughts on this is, if you are not accessing YOUR tract, then you do not have an easement there and thus should not be driving on the road that cuts through the middle of my ranch.... right?
So far, I have not debated it, but lately I keep getting people driving up (funny how it is right around hunting season) "may I help you?" .. "yea, seen anything lately?"
I am like, "if I did, what is it to you?" I mean, not trying to be rude.. but what the hell are you doing driving around sight-seeing during hunting season on someone else's land?
These are not public roads. You use them to access YOUR tract and then you stay the hell off other people's tracts.
They had the chance to buy end of the road, but did not. I did.
Thoughts?
Russ
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MtnDon
Member
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# Posted: 22 Oct 2013 02:17pm
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Quoting: jrbarnard These are not public roads.
If that is correct then the association should have a gate at the property boundary along with posted, keep out, no trespassing signs. Unless that road is marked like that how am I to know it is private?
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jrbarnard
Member
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# Posted: 22 Oct 2013 02:28pm
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We have a gate at the front.
I am talking about other owners in the area going sight-seeing way past their tracts around other people's tracts.
And I have signs going up soon that say "private property beyond this point. It will only keeo the honest people honest I am sure.
I am just trying to see if my understanding of private access easements is correct and I do not need to gate it off.
in MY mind.. they have no business driving the roads in the first place unless they own land that is along that road.... i.e. if they have to pass 10 tracts to get to theirs, fine.. but if they are PAST their tract, then that is not their easement.
Russ
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bldginsp
Member
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# Posted: 22 Oct 2013 02:50pm
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A common easement, if so recorded on the deeds, allows them to use the road, whether you and I think they should or not
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jrbarnard
Member
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# Posted: 22 Oct 2013 02:54pm
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It is not a common easement.
The exact wording is:
All roads within the Subdivision are hereby dedicated as perpetual, private access easements to and for the benefit of the tracts or lots within this subdivision, and their heirs, successors and assigns and the Developer, and the developers heirs, successors and assigns. These roads are not public roads and their repair and maintenance are not the responsibility of the county.
Therefore.. not common at all.
Russ
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bldginsp
Member
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# Posted: 22 Oct 2013 03:48pm
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Perhaps I don't know the exact definition of common easement, but what I meant was an easement that allows all easement holders use of all easements. I don't see anything in what you wrote that restricts easement holders from use of any portion of the roads. But the wording is vague. If it does limit easement holders only to access to their tract, how can you enforce that?
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jrbarnard
Member
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# Posted: 22 Oct 2013 04:59pm
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And my understanding (I am not arguing.. just trying to think it through) is that in order to be granted rights, you must be granted them. Omitting the express denial of rights would not be the same as granting them.
i.e. if your deed said you had an easement, you would have it. NOT saying you do not have an easement would not grant you rights to said easement simply because they did not deny it.
If that makes sense.. heh
An example would be in the plat where it discusses the utility easements and expressly states that all owners within the subdivision have rights to this easement, vs the road easements they do not expressly give rights to all owners.
Anyway, all legal mumbo jumbo.. it really comes down to the fact I will want to gate the front of my tracts and tell them all to stay the hell off unless I invite them :P
Russ
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EastTN
Member
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# Posted: 22 Oct 2013 05:38pm
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If a gate means you are then responsible for road maintenance. And no gate means the association pays for road maintenance. Then putting up a gate should solve your problem. As long as the association is paying for road maintenance I'm thinking that any property owner belonging to the association has a right to use the road.
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bldginsp
Member
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# Posted: 22 Oct 2013 06:22pm - Edited by: bldginsp
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Putting up a gate may not solve your problem. My neighbor put one up to stop off-roaders from coming into his place from the back side. They ripped it out.
As for the legal issue, what does the association say about them using the end of the road?
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MtnDon
Member
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# Posted: 22 Oct 2013 06:47pm
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My thought pattern: If the assessment for road maintenance is done by the lot then I believe any owner can drive on any foot of any road within the developed area. Just because the road "intrudes" into your four parcels does not make you the owner of the road. Perhaps you need to approach the association and propose that you buy that section of road at fair value AND absolve the association from having to maintain the road.
Am I right in thinking that you actually own the lots you mentioned. It is not set up like a corporation where you have shares and the corporation lets you use a certain amount of land. In other words the land is recorded with the county and those records show you own certain parcels.
Here in NM there would be a plat recorded with the county indicating the precise boundaries of what you own. The road could not be included in the privately owned land, or it might be. If the plat shows that you own half the road, like up to the centerline of any road that borders the property, then if you own the land on both sides you could make an argument that the road is privately yours. But if the property boundary stops at the edge of the road then that argument is hard to make. Here in NM at least they are pretty good about delineating exactly what you own and exactly what the boundaries of any easements are.
If it is not so clear that arguments can be made either way then the association should address the issue at a meeting of the owners. Is there an annual meeting; that would be the time and place?
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HoosierDad
Member
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# Posted: 22 Oct 2013 08:29pm
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Property law can vary quite a bit from state to state on issues like this.
I recommend you get advice from a local real estate attorney. In my opinion, retaining a lawyer for property issues almost always saves a lot of time and frustration.
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jrbarnard
Member
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# Posted: 22 Oct 2013 08:36pm
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I hear ya.. putting up a gate is the less expensive method and I think I will just do that sooner than expected.. but thanks guys!
R
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toyota_mdt_tech
Member
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# Posted: 23 Oct 2013 09:27pm - Edited by: toyota_mdt_tech
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Those roads belong to all members and can be used by their guest usually. In other words, other members can drive around to see the improvements etc, ie who is building, etc. Keep in mind, all those roads are for members, even if they dont live there. So you cant deny a fellow member access to a road is in a sense is an owner and pays for access/maintance. In my area, we do own the land around the road and the road, but I can not block it, its an easement for myself and all o ther members. They are all private roads, not open to general public. In fact, I have to keep my fence so many feet back so the snow plow has a place to push the snow too.
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toyota_mdt_tech
Member
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# Posted: 23 Oct 2013 09:36pm
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Quoting: MtnDon My thought pattern: If the assessment for road maintenance is done by the lot then I believe any owner can drive on any foot of any road within the developed area. Just because the road "intrudes" into your four parcels does not make you the owner of the road.
Don is dead on. You can not block that road. I guess you can get permission from board and if all the owners are OK with it, then maybe file the change with the county clerk etc. Otherwise, illegal.
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jrbarnard
Member
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# Posted: 23 Oct 2013 09:37pm
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I would have to disagree with that. The plat/deed is clear that they are private access easements, not public roads.
Pointless issue after I add a gate and make it permanently private though.
R
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jrbarnard
Member
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# Posted: 23 Oct 2013 09:57pm - Edited by: jrbarnard
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Uh.. I can block the road, hence why it is private. Sorry guys, I did not give enough information for you to make a decision, my fault.
There is a gate on half the property.. I have one tract that was on the 1st phase, in front of the other three tracts.
I just did not want to add a new gate to block it all off.. as I said, I like visitors.. I just am not getting them, I am getting people that want to drive all the way around the property....and that is NOT allowed no matter what the plat says.
Last weekend, I had a hog trap set.. and I did not set it.
The issue is not whether I can add a gate, they have people on each of the other dead end roads that added gates, I just like visitors so I leave the gate open.
Hence why I, again, believe the roads are private access easements.
Also, again, I point to the exact wording of the plat, "the roads in the subdivision are perpetual private access easements"... not public.
But, again, I do not want to sound like I am arguing, I just should not have made the post as it is hard to make a call on something you'd have to experience.
Back to talking septic etc.. :P
Thanks!
Russ
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toyota_mdt_tech
Member
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# Posted: 24 Oct 2013 12:25am - Edited by: toyota_mdt_tech
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They are private access easements, but it belongs to all the members of your association. All the members have access to all the roads, not just the people who have a lot down said road.
Our roads are all private, for members and guest only. So all members and their guest have access to the road, even if it in your parcel. I have a spur road going right down my southern boundary. Its only job is to allow access to the lot east of me, which I am going to buy from the owner. I guess you could gate it and give all members the combination to the gate. The spur road south of me is all inside my property, just inside the boundary. I own all the land around it and I can not close it off. Its an easement and belongs to all members.
Now are you saying they are driving off the association road and onto your land? Yes, you can add all the gates there you want. It may take several, depending on how many access points you have.
I know you are getting upset because the answers you are getting isnt what you wanted to hear. But it is the facts. Certainly you can put up a gate, and maybe no one will complain. Do you have by bi-laws, have you looked into it? If its not mentioned, doesnt means its OK (like earlier poster said) but if it is mentioned and it says its OK, there ya go.
OK, from the point of this gate, do you own all property on both sides of the road and past the end of this road, I mean, no other land owner can gain access to his property via this road?
How about access in case of a fire? How would a fire crew get past it? Could you be held accountable if a wildfire got out of hand because of a locked gate and burnt up members cabins???? I'm certain a fire crew would just push it down if they needed it.
When you have lots of members, chances of them all being on board with your confiscating members road and banning them from it wont fly with a good chunk of them. And it can be a big mess at the next association meeting.
Do you guys have meetings, bi laws, votes etc?
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jrbarnard
Member
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# Posted: 24 Oct 2013 06:13am
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Toyota, you are inferring they belong to all the owners just as I am inferring they belong to me. I have already spoken with our real estate attorney and both sides can make the same argument here.
I hear ya bud, and I do actually see your point, hence why I have to add a gate as I can do that if I have the approval of all the property owners 'behind the proposed gate area' that agree to maintain the roads themselves. Since I own all the properties behind the gated area, I am the only one that has to agree.
That is another ruling of the "past board" that makes me think the roads are private, I only need the agreement of the people that access their lots that they will maintain the roads themselves. If I needed the approval of all the owners, it would mean that they all have rights.
They are not driving off the association roads, well.. they ARE.. but that part I cannot stop even with gates as they know they cannot go off the roads, they are actually setting my traps... heh
I am not getting upset because I am not hearing what I wanted to hear, I expected most to say this as I cannot type all the information out hence you cannot make a full opinion, again, my fault as I give half facts.
The inferences in the past rulings alongside the actual plat are what dictate the 'ideals' behind the rules and how the board and owners interpret them. I do not think anyone expects the roads are for all to use, I think they simply never had anyone SAY they were not for public use. so people just ..'drive around'. I am sure that if I added the signs (which are in my truck to add this week) then most would stop. The ones I really want to stop, will ignore them since they seem fit to set my hog traps, hence why the bottom line is to add a gate.
But, again, I hear ya.. and everything you are saying is true and I am annoyed because it is true and I knew it would be, that there will be a few that will see your statements as true and whether or not they are, is not the point, the only way to make the road private is to add that gate and I was trying to avoid that $2000 expense :P
Russ
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toyota_mdt_tech
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# Posted: 24 Oct 2013 09:13am
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Well, I see your point. I'd liek to close off that spur road at my south end, as its only reason was for access to the lot east of me, which I'm in the process of adding to my collection right now. But that spur road also can be used for access to 2 lots south of m e, even though tthey still have another road going through their place.
I dont see any issues with your proposal, its going to depend on the bi laws/rules, If its like my area, the roads belong to all members, but also closed to the public, but members are not considered public. But some members have done it already. They, like you were at the end of the road blocking no one. One gate I came up to had no turn around, hence, no one could go to the turn around at the end. So would you need to install a turnaround for a snow plow etc? There may be room, this one was on a narrow road on a sharp turn, steep hillside. If a car and trailer came to it, I dont know how they would turn around.
Good luck and keep us posted. 
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jrbarnard
Member
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# Posted: 24 Oct 2013 10:08am
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That is a question I will leave to the board.. lol. IMO, if they approve me adding a gate, and I will get that in writing, then they will need to worry about a turn-around.
The road in our area is sooooo much worse than theirs. They have spent over 30k in the past 3 years maintaining the roads in the PoA and have not spent a dime on our area. The roads are all useable for 2-wheel drive, but many areas, like the turn-around, cannot be seen...i.e. are overgrown. The roads by them, you could speed through and not spill your coffee. Disparity of funds....imo.
So, I will probably have to pay for 3-5 truck loads of roadbase at 420 bucks a pop, plus the costs of the gate itself. I may just move the current gate up, but I am still nto sure how to dig it up TO move it.
We will see. I'll take pics ;)
Thanks for all the input, Toyota.. I do process it all.. heh
Russ
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MtnDon
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# Posted: 24 Oct 2013 10:40am
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Installing the gate may work and installing a gate may also make some folks angry. In that event the issue goes to the board so IF it was me and I know it isn't, I'd go to the board first with a request to reword the association rules.
We have to drive through National Forest land to access our property. The roads are closed in winter, gated and locked. The FS also locks the forest down during extreme fire danger. We have a key that gives us access. But along with the closure order they include the wording that we can access only our property and only by the most direct route. That is very clear. We have a key that lets us get TO our property but does not let us roam around. And it is enforced.
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Kudzu
Member
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# Posted: 24 Oct 2013 10:56am
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If you are not blocking any of the other landowners, put a gate up with enough room for a turn around. You will also be responsible for your share of the upkeep of the road to your gate and all the upkeep beyond your gate. You might piss some people off and have to remove the gate, but you might not and can better control access to your property.
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jrbarnard
Member
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# Posted: 24 Oct 2013 11:34am
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yup!
R
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MJW
Member
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# Posted: 24 Oct 2013 12:00pm
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I started putting up our fence & gate yesterday.
Amazing how you can build over 500 ft off of the road and folks want to drive down anyway to "take a look."
If I wanted you to see...I would have built it ON THE MAIN ROAD.
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jrbarnard
Member
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# Posted: 24 Oct 2013 02:20pm
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lol.. so true. I had plans to put the fences in, but I was not planning on adding the gate. Now, I have to rent a machine to drill the holes in the ground for the gate.
No biggie ;) It will look awful nice when I am done ;)
Russ
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soundandfurycabin
Member
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# Posted: 25 Oct 2013 03:58pm - Edited by: soundandfurycabin
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"All roads within the Subdivision are hereby dedicated as perpetual, private access easements to and for the benefit of the tracts or lots within this subdivision"
I think you have a good case as the easement is specifically an "access easement". That means the purpose of the easement is for other owners and their visitors to gain access to their own lots. They can use the roads to go to and from their lots. They likely do not have the right to use the roads for sightseeing drives, playing ball hockey, walking their dogs or anything else.
So, you likely have the right to keep people from using the road through your property, but it may depend on the property law and court rulings in your location.
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