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  1. #1

    Default Reasonable Remuneration for Allowing a Subordination of an Existing Easement

    My question involves an easement in the state of: California

    I have a question regarding a reciprocal agreement that part of our residential development is being asked to sign, in order for the proposed housing development adjacent to our development needs in order to be able to have their development plan approved by the county. Our development is a small gated community. The proposed housing development to the east of us, in order to have their plan approved, must provide emergency exit routes in two opposite directions. In order to do that, they are having to propose an emergency exit that accesses our development, and would cause their residents, in case of an emergency, to be able to drive through our development in order to exit to the west. Our development has no "common property", so all of our lot lines extend out into the middle of our streets. We already have an existing easement agreement with each other, to allow the residents to drive on the streets, and this proposed developer to the east of our development is asking us for a subordination to this existing easement, to allow their residents, in the event of a serious emergency (i.e., wildfire, earthquake), to be able to open a proposed locked gate (electronically openable by an HOA board member or emergency responders, or by a resident, using a wrench), and drive out through our development. This affects only some of residents, as the exit route crosses a few of the lots. We are asking for some concessions from the proposed development in return for signing the reciprocal agreement that requires the new developer to give us some attractive concessions (such as a 20' planting barrier between our developments, the building, improvement and maintenance of that emergency road and gate, a camera at the gate, and several other concessions that are beneficial to our development). The developer is in agreement with our requested concessions. My question is this - we have some homeowners who are stating they will not sign this reciprocal agreement unless this new developer remunerates them in some amount (unknown to me). I am wondering what is commonly done in these circumstances, and what would a reasonable remuneration amount be, if it is commonly asked for? Our fear is if these two homeowners prevent this reciprocal agreement from being signed as it stands, the county can come in, and instead of the currently proposed emergency road route, recommend exercise an existing IOD that runs through my property and my neighbor's property that will carve out a very large section of both of our lots for an access road to that development. And, the road would be made public, and we would then lose our gates, losing our gated community status. Both of these things would significantly devalue our property. I doubt we would have any legal recourse against the holdout homeowners, but if I could find out if a remuneration is often part of an agreement such as this, and what might be a "reasonable sum", I might be able to convince the new developer to remunerate all 10 affected homeowners, and we can then move forward. The county planning commission I fear is running very short on patience with us, and may simply throw up their hands, and voice their recommendation of exercising that IOD and be done with us. The developer to the east of us also does not wish for this solution, as it would also remove their gates, which would devalue their proposed development as well. Any suggestions as to what a reasonable sum of money would be to remunerate the small number of homeowners in our development whose easements would have to have the subordination placed would be very appreciated.

  2. #2
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    Default Re: Reasonable Remuneration for Allowing a Subordination of an Existing Easement

    Before anyone can discuss compensation it's normal to find out what is being asked.

    Do you have a written copy of the proposed alteration to your current easement agreements?

    You would want to know who is specifically allowed to declare an "emergency" and how that will be defined. You would also want to know exactly who would be permitted to use your access in an emergency. Once the gate is opened, who is allowed to close it, when, and under what circumstances?

    Once you have the proposed document you should absolutely retain your own attorney for advice about it's implications. When additional easement rights are granted in writing, it may be nearly impossible to "correct" them if they were not just what you expected.

  3. #3

    Default Re: Reasonable Remuneration for Allowing a Subordination of an Existing Easement

    Thank you for responding. In response to your questions: The developer to our east is asking to be able, in the event of an emergency (deemed to be "serious", as in wildfire and evacuation required of residents, earthquake and evacuation required), that their residents will have the ability to exit through a gate that normally remains locked, and traverse across our street. Their are approximately 10 lots that would be involved. Yes, we have a written reciprocal agreement (I helped write it, so I am very familiar with it). Yes, our HOA attorney has reviewed it of course. We have an HOA attorney on retainer. Now, back to my question I am asking originally: Is some sort of financial remuneration standard or common in this sort of request, and if so, what would a reasonable amount of remuneration be? Trying to get our hold out homeowners to come to the table, and be able to propose a reasonable remuneration to all affected homeowners in our development. Not sure if $5,000 or $50,000 is reasonable, or if a financial remuneration in return for permission to cross over our roads in the event of an emergency is a normal request.

  4. #4
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    Default Re: Reasonable Remuneration for Allowing a Subordination of an Existing Easement

    It's curious that a private community was created with a road access that continued to a point that terminated not within the gated community but at an adjoining property not a part of the HOA.

    Nevertheless, it's likely that the local fire marshal, police chief, and the local sheriff already have the full authority to open the gate in any situation they deem to be an emergency.

    So this is not a legal issue, but a planing-zoning issue. As for your holdouts to agreeing, they can hold out for whatever they want. There is no real procedure for fixing a value on their cooperation. You could try hiring a certified appraiser to arrive at a diminution of value in the event the easement change was put in place, but I think that would be a difficult, if not impossible task.

    In any case of negotiation such as you are facing, it's never best to be the first to name a price. You aren't in any obligation to come up with a price. Get the developer to name a price first and move on from there. The actual value is what the developer is willing to pay. Your HOA regulations will determine if you negotiate as an HOA, binding all members, or if you negotiate individually. But you already have an attorney taking care of that.

  5. #5

    Default Re: Reasonable Remuneration for Allowing a Subordination of an Existing Easement

    No, not correct. The short emergency road proposed to be built would actually traverse across the edge of an unbuilt lot, across the lot line, then into the new development to one of their proposed residential streets. The IOD (irrevocable offer of dedication) that exists on my and my neighbor's property is an extension of our existing street in our residence, and of course, the county assured both us and our neighbor, when we purchased our homes back in 2009, that they had no intention of ever exercising that IOD (so much for honesty from a county employee). And yes, of course the emergency personnel would have the ability to open that gate - in our county, strobe sensors are placed on all electronic gates for that purpose, plus their are special keys that emergency responders have to open the gates as well.

    This is a legal issue since property values are involved, and attorneys are currently involved. I'm trying name our price. That is my specific question to the forum: What would be a reasonable price for a homeowner to demand from the developer needing access through our development for the emergency permission to traverse across our roads? I am trying to facilitate this process. I know a couple of homeowners are holding out for some amount of remuneration. I would like to be able to propose a "reasonable sum", but I have no idea what that might be in a case like this. It's not like we're giving up a piece of our property. It is merely a subordination of an existing easement. So, I would think demanding a large amount of money to remunerate the homeowners would be unreasonable. So, is $5,000 a reasonable sum in a situation like this? $10,000, $50,000?? I don't know. I'm asking the forum members who have experience in a situation such as this, what might be considered reasonable so I can propose this to our current board, as well as to the developer's attorney. We have to come to the table with something. It's fine to discuss this with the attorney and not "lay down our cards", but we still need to know if what their attorney proposes is reasonable. There have been some difficult dealings with their attorney in the past. So, we would like to go into this as informed as possible. We will have our HOA attorney there to represent us of course, but was hoping I could get some expertise from this forum. So far, everything that has been discussed I am aware of. What I need is a dollar amount of a "customary and reasonable sum" for use of our road during an emergency. Anyone able to provide that information??

  6. #6
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    Default Re: Reasonable Remuneration for Allowing a Subordination of an Existing Easement

    No, not correct. The short emergency road proposed to be built would actually traverse across the edge of an unbuilt lot, across the lot line, then into the new development to one of their proposed residential streets.
    I guess the reason I would not know this is that the specifics were not revealed by you until now. Nevertheless, I assume that your attorney has advised you that if the IOD only affects two lots and not the private road easements in question, the only two means of obtaining a modification of your road easement would be by agreement or by condemnation. Is that your understanding?

    As for agreement, you have missed my statement about whether the rights of the easement holders are controlled by a vote of the HOA or are separable. Your attorney should have told you about this also. What is it?


    This is a legal issue since property values are involved, and attorneys are currently involved.
    If the local planning commission is requiring this as a condition of the proposed neighboring development it is a planning/zoning issue. You seem to be quite guarded about giving out important information, yet you want a specific dollar amount or range to take to your co-owners. Asking for a very specific answer without providing equally specific information is unrealistic.

    We don't know your county.

    We don't know your your acreages and areas in easement.

    We don't know the specific appraised value of the ten properties.

    We don't know the granting language of your individual ROW easements.

    We don't know the actual language of the IOD.

    We don't know the potential value of the proposed neighboring development if all ten of you agree to an easement modification, or the value of the same if you refuse.

    We don't know what the difficulties have been in terms of issue topics with the neighbor's attorney. What issues have been raised which we don't know about?

    What I need is a dollar amount of a "customary and reasonable sum" for use of our road during an emergency. Anyone able to provide that information??
    An interesting request without providing any of the information being required for a response. You could be talking about a gated trailer park in Emeryville for all we know.

    You could try hiring a certified appraiser to arrive at a diminution of value in the event the easement change was put in place, but I think that would be a difficult, if not impossible task.
    That was my advice a couple of posts ago. If you go to court over this none of the information you might get here, and none of the opinions you or your neighbors might have about the value of what you are asked to give up will likely have any sway in court.

    In a condemnation proceeding the opposition will have a certified appraiser on board as an expert witness. In the absence of any expert witnesses on your part, the court will likely go with the appraisal of damages provided by the opposition's expert witness appraiser, to the dollar.

  7. #7

    Default Re: Reasonable Remuneration for Allowing a Subordination of an Existing Easement

    Not asking for a specific amount, just a ballpark amount. Yes, I am purposefully being guarded about my location, some of the people involved have not been forthcoming and this is a somewhat contentious issue. I don't know who might be reading this forum. We are trying to get this resolved as amicably as possible, due to the distinct possibility of having this IOD exercised. Clearly, if we lose our gates, all property values will diminish. I can't tell you what that might be, no one could tell you. It would simply be a guess. It is a very nice residential neighborhood. Homes are on approximately 1 acre, home values currently are between $700 and $1 million. The county planning employees who are trying to assist in getting this off their books have made it very clear in two presentations to us, that the exercising of the IOD is certainly an option, the easier option for them as well as for the fire marshal, and in the last meeting with them, there was the implied threat of exercising this IOD if we could not come to an agreement. The IOD severely affects our lot and our neighbor's lot. It might affect the lots that line the existing street of which the IOD is an extension of, if the county decides to be very nasty, and require that our private road meet current public road codes for width. If so, then 6 additional homeowners would lose about a 10' section of their lots as well. Although the county stated they could make an exception (they seem to be able to write their own rules at will, if it so suits them) to accept the current road width, but it would still be deemed a public road and our gates would be removed. And, the county can also deem this road a public road, but that the upkeep and improvement to the road would still be the responsibility of the HOA. They are playing hardball with us, and their attitude was not appreciated by our homeowners. Not talking about using this information if we go to court. That is an entirely different situation in which we would obviously retain legal counsel. Simply asking a simple question. If you cannot give me a general idea of what a reasonable remuneration might be, that's fine. I can ask elsewhere. I don't think a certified appraiser is the person to answer the question. It would be a land-use attorney or a real estate attorney with HOA experience who may have had experience similar to our situation. Do you have this experience? Have you seen situations such as this and can offer a suggestion?

  8. #8
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    Default Re: Reasonable Remuneration for Allowing a Subordination of an Existing Easement

    If you cannot give me a general idea of what a reasonable remuneration might be, that's fine. I can ask elsewhere.
    Not a problem here. But the information I don't have here will need to be disclosed elsewhere, or you won't get any better answers.

    I'm still in the dark about how, if the IOD is exercised on your two lots, that that opens up all of the rest of the private road easements, removes your gates, and becomes a public road. Who told you this? If the IOD does not control the private road easements, I don't see how this can happen without a condemnation proceeding and proper compensation for the taking.

    The county may be acting very nasty and threatening, but they cannot, without prior agreement, turn your private street into a public road without due process (not an ordinance) and compensation.

    Do you have this experience? Have you seen situations such as this and can offer a suggestion?
    I have only been a licensed land surveyor, working with zoning issues, easements, land subdivisions, etc. for thirty five years. I am in Ohio and you are in California. I wouldn't have posted responses which I didn't consider to be qualified responses. There are definite differences between how your issue might be decided in different states. But you information is so general and unspecific that I have no problem providing general suggestions.

    You can take them or leave them as you wish.

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