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  1. #1
    Join Date
    Mar 2009
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    3

    Default Homeowners Association Right Of Way

    Two years ago I purchased a home in a subdivision that has a piece of communal property attached to it. There was no right of way done when the development was constructed. The property is landlocked by my lot and my neighbours lot and is not connected to any other property belonging to our subdivision. The homeowners association is now requesting that we grant them a right of way or there will be civil litigation. Our house is within 15 yards of this property and bought it under the assumption that the property that is now communal is just waste. The right of way would have to come directly through my yard and I am not interested in granting it. Does the association have any grounds to stand on, or since the original deeds have landlocked the property, am I entitled to make the final decision?

    FYI..........North Carolina

  2. #2
    Join Date
    Oct 2007
    Location
    Ohio
    Posts
    2,592

    Default Re: Homeowners Association Right Of Way

    What is the land currently used for?

    Why would the homeowner's association want a right of way to it?

  3. #3
    Join Date
    Mar 2009
    Posts
    3

    Default Re: Homeowners Association Right Of Way

    The land is currently not used for anything. It was partitioned from our original deed due to the necessity of flood insurance if it was included with the lot. So instead of having to sale the house with the requirements of needing flood insurance, the developer created it as communal space. Instead of creating a right of way at that time, the developer just land-locked it with 2 lots. My understanding is that the association wants the property to build some type of play ground. The problem is that anyone wanting to use the property will have to walk down my driveway and thru my yard to get there. At no point was there a right of way thru my property.

  4. #4
    Join Date
    Apr 2008
    Posts
    176

    Default Re: Homeowners Association Right Of Way

    If the homeowners assoc ownes the lots they can condemn a way in. It usually costs the condemnor quite a bit to do it. Does you state make the condemnor pay the condemees legal fees? I think I would just say no. You most likely don''t want the noise and foot traffic by you house anyway. You can always offer to sell your place to them and move. The homeowners association most likely landlocked it to begin with. Back when the developer made up the association. My .02

  5. #5
    Join Date
    Mar 2009
    Posts
    3

    Default Re: Homeowners Association Right Of Way

    Landagent,

    So what you are telling me is that the homeowners association can, with litigation create a right of way to the property? Even though the original deed to my property never contained one? The property is not a "lot." It is a parcel of land that was going to be flood plain and require my house to have flood insurance. The developer took it off my deed and made it communal for the association. For descriptive purposes, pretend the parcel of land I am concerned about is a 10x10ft rectangle in my 20x20ft rectangle. Can the association force me to provide a right of way when there was not one before I bought the property.

  6. #6
    Join Date
    Apr 2008
    Posts
    176

    Default Re: Homeowners Association Right Of Way

    Not sure what state you are in but if the homeowners association owners the lot, and they want to get access they can use the condemnation laws to get that access. Its expensive. Things you do to make it that way are, appraisals, diminished value arguments, surveys, depositions, delays, zoning problems, environmental concerns. If they bring in dirt to make the lot drain, where is all of that water going to go? Make them pay for noise abatement walls, etc, etc, you get the idea. Judges in these cases (special masters) tend to award higher amounts knowing you are having to pay for you defense. Expect to have the neighborhood give you the finger. Why not sell them your house at a really good price and move on? Or put up the good fight. Go get a nasty lawyer and go at it. Maybe, if they see you are going to fight, they will back down. If they landlocket it in the first place makes you wonder how they can sue to get it unlocked.

  7. #7
    Join Date
    Oct 2007
    Location
    Ohio
    Posts
    2,592

    Default Re: Homeowners Association Right Of Way

    Can the association force me to provide a right of way when there was not one before I bought the property.
    It's quite possible they can. But will they?

    They are not entitled to a right of way at no cost. You did not landlock the property, the developer did. So they will not only have the cost of a lawsuit, but will probably also owe you the full price of the reduction in your property value, according to a certified appraiser in your state.

    If you lose on this, the developer or your title insurance company may have liability but that is a legal matter for your attorney.

    Is the parcel listed as "communal space" on the dedication plat? If not, how is it labeled?

  8. #8
    Join Date
    Apr 2008
    Posts
    176

    Default Re: Homeowners Association Right Of Way

    LandSurveyor is right about the plat. Also, you might want to check into the minutes of the Association meetings back at the time it was changed and landlocked.

  9. #9
    Join Date
    Mar 2009
    Posts
    327

    Default Re: Homeowners Association Right Of Way

    Was the HOA in existence when you bought you house? If not, you had no legal requirement to join it or be servient to its bylaws and or rules.

    Who owes the tract? What is the proposed use? Is the tract labeled wet lands by the City?- If so, the may be environmental issues that will restrict development. Has the HOA tried gaining a ROW from the other abutting tract owners? Can the tract be legally developed for any use? What does the zoning and planning Board of the City say?

    IMO-I would ignore the HOA and get to a lawyer asap.

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