- February 25, 2013 at 3:00 am #87594
I am purchasing a home on 1/3 acre.. It is located in a private gated community. Prior to the owner I am buying it from, the community owned the home as a rental unit. According to the map the community built a “utility road” through my property when the property belonged to them. The road goes to a utilities complex (water and electic facility), and can be accessed through 2 entrances, this one and another entrance on the road behind it.
I will be paying HOA fees and taxes on the property and don’t feel I should have to pay for the portion the community uses for their private business.So i don’t want to have to pay fees on that portion Or I want the road shut down to their use,as there is 1 other entrance that can be used instead…
How do I go about finding out the information I need on this?
Can anyone give me an idea of how I can get this straightened out or at least find out if a legal easement exists..
If no legal easement in writing exists, is there anything that can be done to get the land back or make my HOA fees and taxes less because I don’t have access to that part of my property?
P.S. My new home is in Monroe County, PAFebruary 25, 2013 at 3:57 am #365643
You look at the deed. It will be listed if it exists. Start with the registrar of deeds for your county. If no legal easement exists, then they can’t use it, and you may block off the road, or at least the portion on yoru property, or send them a letter informing them they have no right to it.
Your HOA fees and taxes have nothing to do with easements. Removing an existing easement or adding one doesn’t affect either thing.February 25, 2013 at 4:50 am #365644
(1) if the property was not deeded to the HOA, you are responsible for taxes. Fees are up to you to negotiate.
(2) If there is a road easement, those things as far as maintenance and fees should be addressed in a private road agreement that may or may not be of record
(1) Get a copy of the survey, the current deed, the subdivision plat that probably shows the road and a title search for the property and take them to a good real estate lawyer
(2) If there is no legal easement shown on any of those documents, they may STILL have a presumptive easement or easement by common usage. Again; Lawyer Taxes are fixed. HOA dues are negotiable.February 25, 2013 at 5:48 am #365645
All the recorded easements will be listed in the Preliminary Title Report from the title insurance company.February 25, 2013 at 6:42 am #365646
Your title search will indicate all easements. But some you have no control over. There will be an easement for electricity and water and sewer, and the company that has the easement can also provide an easement to another third party. For instance, a cable TV provider can use the electric company easement to service your unit. But that usually relates to putting a line or pipe across your property. The easements I noted are not specific as to location, etc.
But if there is another type of easement, then the title should be quite specific as to what portion of your property it pertains to, and other details about the easement.
You can ask specifics about the road easement. It might simply be in the event that the other access is blocked, they can drive across your property to access it. Doesn’t mean they intend to build a highway across your property. It doesn’t mean you don’t have use of your property.
My property has the remnants of an old road that accessed a nearby quarry. It doesn’t show up as an easement, and really is irrelevant now, since there is no possible access to the quarry anymore, and the area is all built up. But through the thaw/freeze cycle, macadam surfaces on occasion.February 25, 2013 at 7:23 am #365647
You have asked a complex question with several answers to each of several parts. Here is how I would do it.
1) First, check your preliminary title report to see if any specific easement is referenced or if any general easement annotations and exemptions are shown in the ‘Exceptions’ portion. If so, are any of them your road?
2) Next, is the ‘map’ you speak of a recorded map. If so,that may be all that is necessary to create the easement however there may be additional language required (or not) that define exactly what the rights and obligations of the various parties to the easement are. This is important because YOU may be responsible for some of the maint. and you are DEFINATLEY going to be sued if there is an accident on the road.
3) YOu asked good questions in your ANSWERS inquiry. Pose those same ones (nicely) to the HOA – in writing AND to the utility companies that service the complex (don’t forget that not only is there a road, but there are likely buried utilities out there somewhere..
Lets take two issues
A LEGAL EASEMENT EXISTS: Lets assume that they easement is non exclusive (their use is included in your rights to use it). If this is the case, then the property is ‘as is’ and you will not likely be able to claim any reduction on the taxes or fees because it is a prior condition. The easement was created by the map or later purchased by the HOA and unless there is written verbiage to the contrary, it is what it is. You do not have the rights to undo it.
THERE IS NO WRITTEN EASEMENT: Here the waters get murky. If the Map is just a drawing in their office and no official citation is made in the HOA, and assuming the land is to be passed in fee simple, then there may be no easement. THis sounds unlikely but if that is the case, then an unwritten easement may exist by the prescriptive use of the roadway by the Utility company. This is a valid form of easement and to have it released you must challenge it in court or they must cease to use it for a prescribed period of time. Either way you would need a lawyer to do this.
OTHER ISSUES YOU NEED TO LOOK INTO
a) Are you buying FEE SIMPLE title. Sometimes gated communities are like giant condos with the rights to the land being held in common while you have exclusive use of the property. Check to see if this is your case. If so, then it is up to the HOA to deal with the easement entirely
b) Who is responsible for the maintenance (and liability) factors associated with the roadway.
c) Ultimately, you can also challenge your property tax assessment because of the loss of the full use of the property. You may get some money off THAT tax bill
d) What does the seller say. You can always require that, as a function of the sale, he/she/they determine the answers to your questions and indemnify you if they are wrong. Under the terms of disclosure the present owner needs to tell you whatever he knows about the easement.
e) If all else fails, put up a gate and a no trespassing sign and see who comes knocking on the door to use the road. Then challenge him for a copy of the easement. No easement,….no access.
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