Usage of a Right-of-Way for Access to Buildings That Were Not Completed

My question involves real estate located in the State of: North Carolina.

I bought a 12 acres lot along a river in Western North Carolina. There is an HOA with 100 lots but only 1 house that surrounds my land. I have an easement to use their roads to enter my property and they have an easement to ingress, regress and egress over my property to use a pavilion and bathroom facility. Originally the plan for my property was to build the amenities for the larger development but the developer went bankrupt and the bank repossessed the lot on the river. I bought the 12 acres from the bank in 2010.

I am not part of the HOA and the pavilion and bathroom were never finished. in addition, the deed refers to a Joint Use Agreement between the developer and the HOA but that was never created.

My question pertains to the use of the pavilion and bathroom facility. Since the two buildings were never completed (No certificate of occupancy) does the HOA have the right to ingress, egress and regress over my property to use unfinished buildings? Also, since there has never been a Joint Use Agreement do they have the right to park on my property.

There are two separate and distinct questions.

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My question pertains to the use of the pavilion and bathroom facility. Since the two buildings were never completed (No certificate of occupancy) does the HOA have the right to ingress, egress and regress over my property to use unfinished buildings?

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Is this purely a what if question or are people actually crossing your property to get to the buildings?

Either way, it depends on the circumstances, but it's almost a guarantee if the two buildings belong to the HOA then the HOA can eventually get awarded an easement by necessity if it gets to court regardless of the condition of the buildings.

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Also, since there has never been a Joint Use Agreement do they have the right to park on my property.

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Of course not.

If there are people actually parking on your property I suggest you put up "no trespassing, no parking" signs with warnings that vehicle will be towed at the vehicle owners' expense and then make arrangements with a towing company. You should probably quote the appropriate statute on the signs like they do in parking lots.

Do you own the land that the pavilion and bathroom sit on, or do they just need to go through your property to get there?

I am active duty military so I am not able to monitor the property but people from the HOA park near the pavilion to go fishing our build a fire in the fireplace. The HOA does not own the buildings but have an easement to use the building as outlined in a joint use agreement. Although, a joint use agreement was never created so I am unsure what my legal rights are to refuse them use of an unfinished building. My reasoning is that if the buildings were never finished for their intended commercial use then the HOA has no reason to enter my property therefore no useful easement.

I have not posed "do not park signs" because I have no way to monitor the property.

I own the land that the pavilion and bathroom sit. Neither the pavilion or bathroom have been completed. No certificate of occupancy for commercial use.

The answers to your questions depends upon the granting language of the easement, which is not available to us.

Given the nature of the buildings that were to be constructed, I would be surprised if the easement does not anticipate that resident members of the HOA can park on the easement, adjacent to the facilities (or their intended location).

By "the HOA", we're talking about the occupant of the single home that was built in the intended community?

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Quoting daxbatt

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My question involves real estate located in the State of: North Carolina.

I bought a 12 acres lot along a river in Western North Carolina. There is an HOA with 100 lots but only 1 house that surrounds my land. I have an easement to use their roads to enter my property and they have an easement to ingress, regress and egress over my property to use a pavilion and bathroom facility. Originally the plan for my property was to build the amenities for the larger development but the developer went bankrupt and the bank repossessed the lot on the river. I bought the 12 acres from the bank in 2010.

I am not part of the HOA and the pavilion and bathroom were never finished. in addition, the deed refers to a Joint Use Agreement between the developer and the HOA but that was never created.

My question pertains to the use of the pavilion and bathroom facility. Since the two buildings were never completed (No certificate of occupancy) does the HOA have the right to ingress, egress and regress over my property to use unfinished buildings? Also, since there has never been a Joint Use Agreement do they have the right to park on my property.

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It is immaterial that the pavilion and the bathroom are not complete. What matters is what the granting language of the easement they have says. Is there a description of the land they have access to or does the easement just grant them access to "a pavilion and bathroom" where ever they are located on your land?

They have no right to park on your land unless the easement says they can. All they can do from what you have posted is go to the pavilion and bathroom, leave, and return. So what else does the easement say?

I copy and pasted the following from the deed hopefully you can read it. I bought the property in 2010 after Legasus went bankrupt and the bank took the property back. The rules were never established and neither building was finished.

WHEREAS, Legasus is the Declarant under those certain "Water Dance Covenants,
Conditions, and Restrictions" (the WATER DANCE COVENANTS") recorded in Book 1212 Page 203 on January 6, 2004, as subsequently amended, that govern and restrict the use of those tracts of land located and situated in Jackson County, North Carolina, which collectively
comprise the development community known as "Water Dance"; and whereas said Water Dance community is contiguous to the FISH CAMP in a northerly direction thereof, and the FISH
CAMP is not a part of said Water Dance community;
WHEREAS, the WATER DANCE PROPERTY OWNERS ASSOCIATION, INC., a
North Carolina non-profit corporation (the "WATER DANCE HOA11) was created to promote
the common interest of said Water Dance community;

WHEREAS, Carolina First Bank, has a first lien Deed of Trust on the above described
12.158 acres, as recorded in Book 1684, Page 5, and is joining this Easement Agreement for the purpose of subordinating its lien thereto;
WHEREAS, there currently is located and situated on the FISH CAMP that certain
pavilion and bathroom facility (collectively, the "AMENITIES") for the use and enjoyment of CABINS, its guest, and invitees; and
CABINS desires to allow said Water Dance community the right to the use of the
AMENITIES, all in accordance with the terms and conditions set forth in this AGREEMENT.
NOW THEREFORE, in consideration of the mutual agreements set forth herein and
other good and valuable considerations, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto do hereby agree as follows:
1.Grant of Easement. CABINS does hereby give, grant, and convey unto
LEGASUS, its respective successors, invitees, and guest a perpetual and non-exclusive right to the joint use of the AMENITIES with CABINS, its successors, assigns, invitees, and guest,
together with a perpetual and non-exclusive right of ingress, egress, and regress over and upon
the FISH CAMP the right of joint use and the right of ingress, egress, and regress, collectively,
this "EASEMENT") in those areas designated for the same for the purpose of said Water Dance community's use and enjoyment of the AMENITIES.
2.Governance and Maintenance of the AMENITIES. l he parties agree to establlsh certain rules and guidelines to govern the use, enjoyment, and maintenance of the AMENITIES (as subsequently amended from time to time, collectively, the "RULES"), and LEGASUS, on the behalf of itself, its successors and assigns, and on the behalf of its guest and invitees, does hereby covenant and agree to abide by the RULES. In accordance therewith, LEGASUS covenants and agrees to maintain, repair, and upkeep the AMENITIES at its sole cost and expense. While its
right to use the AMENITIES under this EASEMENT is perpetual, the ability of LEG AS US, its successors and assigns to enforce this Easement shall be incumbent upon its compliance with the RULES, including the regular maintenance of the AMENITIES.
3.Insurance. CABINS shall carry the required property, commercial liability, and building insurance on the AMENITIES, and LEGASUS, its successors and assigns shall pay a pro rata share of the same.
4.Transferability and No Use Restrictions. This EASEMENT AGREEMENT is
non-transferrable without the express written consent of CABINS, its successors and assigns,
which consent may be withheld in CABINS's sole and absolute discretion; provided, however, LEGASUS may assign this EASEMENT AGREEMENT to the WATER DANCE HOA upon
LEG AS US 's transfer of power to the WATER DANCE HOA under the restrictions and
covenants that govern said Water Dance community. This EASEMENT AGREEMENT shall
not dedicate the right of joint use of the AMENITIES to the general public, nor shall this EASEMENT AGREEMENT restrict the use and development of the FISH CAMP except as
stated herein.

5. Full Agreement; Indemnification and Hold Harmless. It is agreed that this EASEMENT AGREEMENT covers all agreements between the parties and no representation or statements, verbal or written, have been made modifying, adding to, or changing the terms hereof. LEGASUS, its successors and assigns shall indemnify and hold CABINS harmless from and against any actual loss or damage that CABINS shall sustain as a direct result of any wrongful or negligent acts or omissions of said Water Dance community in the exercise of any of the rights granted hereunder.
6. Amendment, Modification, Termination. The provisions of this EASEMENT AGREEMENT may be amended, modified, released, waived, or terminated, in whole or in part, only by written agreement of the parties hereto, their successors, heirs, or permitted assigns, and such other persons who may then have, own and hold recorded easements upon, over and across all or any portion of the FISH CAMP.
7. Miscellaneous. This EASEMENT shall run with the land, and shall be binding upon the parties hereto, their successors, heirs, and permitted assigns. This EASEMENT AGREEMENT is entered into and shall be construed in accordance with the laws of the State of North Carolina and any action or proceeding arising hereunder shall be brought in the County of Jackson, State of North Carolina, to which jurisdiction the parties hereto irrevocably consent.
[Signature Page Follows.]

I would take it to a local attorney for review. However, It does state that Legasus is responsible to maintain the amenities and you stated, I believe, that they are no longer in business. The amenities were never even finished, let alone maintained.

It also says that the HOA agrees to abide by any rules set forth, therefore it would seem to me that you have the right to make rules, including parking rules.

I do think that if you do not have some broad liability insurance you need to get some. You need to be covered until the matter is resolved.

So is it correct to assume that you own the property known as FISH CAMP? If that is correct, then I would take the position that the easement is not enforceable by the successors of LEGASUS (assuming that would be the WATER DANCE HOA) until such time that the AMENITIES are completed and the rules are agreed to between FISH CAMP and the HOA.

The easement is not granting access to land but to the amenities that don't yet exist.

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6. Amendment, Modification, Termination. The provisions of this EASEMENT AGREEMENT may be amended, modified, released, waived, or terminated, in whole or in part, only by written agreement of the parties hereto, their successors, heirs, or permitted assigns, and such other persons who may then have, own and hold recorded easements upon, over and across all or any portion of the FISH CAMP.

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If the HOA fails to complete the amenities I would seek to terminate the easement.