Would you consider a property (in Briar Oak Addition) to have "public access" if the 50' Roadway Easement was "dedicated to the Briar Oak Homeowner's Association", and no other entity?
Only the public doing business with the membership.
No.
Yes, implied. (Going with the short answer, longer dissertations to follow , trust me 🙂 )
Don
Yes. My thought is that the maintenance would be handled by the association, but, that the roadway was for general usage that would benefit the homeowners. A certain standard that exceeded local roads may have been intended initially so as to assure prolonged viewing as a "great" neighborhood.
No
but I am really curious about what spin Don will put on it...
No. The home owner's association is a private (corporate) entity, not a public entity. You really need to give a close review of the Covenants, Conditions and Restrictions which accompany the plat. The CC&R's should specify who has what rights in the roadways as well as defining who holds the fee title. Individual states may provide statutory guidance. Here, statutes provide that a dedication by plat is considered a dedication in fee title. Private easements benefiting the lot owners would be presumed by the representation on the plat.
JBS
No.
Unless there is a gate at the entrance, the road is open to anyone. However, it is a private drive whereby public laws do not apply thereupon. For example, signs posted by the Association claiming a 7 mph speed limit are not enforceable by public officers and laws.
Not knowing the laws of OK I'd say that there might be a public easement implied as to the "normal use of roads and ways".
For instance, can a meter reader access the properties through the way? How about delivery people, school buses, or the right to install underground or overhead utilities?
Sorry, no Spin
Just an opinion. I didn't mean to imply that the longer disertations I mentioned would be mine. JBStahl is correct in that the CC&Rs will define the rights, including the public's.
Don
> For instance, can a meter reader access the properties through the way? How about delivery people, school buses, or the right to install underground or overhead utilities?
Those providing delivery services to the lots and those under a service contract wouldn't be considered as the "general public." They are considered "invited guests." The CC&R's may further define who is included on the list of "invitees," but the list won't likely include anyone who chooses to simply drive around on the streets or to pass through for no reason.
JBS
Yes, but I'll bet they (the homeowners) could put a gate across it and a member of the "general public" couldn't prevail to have it removed.
"dedicated to the Briar Oak Homeowner's Association", and no other entity?
Believe that Briar Oak Homeowners Association has the obligation to have in it's documents what the restrictions and authorized use may be. Until the Homeowners Association legally does something like, letting another public road connect to provide an arterial route or within the regulations of the Association rededicate the road to the public, city as a street or county as a road it remains a private road with the obligation to the Association to control and maintain. I see no advantage to making it a public road, maybe some advantage in dedicating it as a city street or county road, because of maintenance costs but around here the public works Dept. do not want to be maintaining any more roads. We find dedications to the public, not as city streets or county roads as it used to be. It will catch up to all of the public works departments in the future when enough of these public roads need repair or development beyond them requires it.
jud
Your question implies the public has been using it. Typically, a public easement by prescription is gained quicker and easier than a private one. The client probably wants to know its status now rather than on inception. So, I would check your State law on public prescriptive easements. I agree the language probably transfers title to the homeowners association, subject to private easements to lot holders. The use by mail carriers, etc. would not destroy that because it's permissive. But if enough people have been using it as a shortcut or something, for the requisite time, then it may be public now.
That sounds familiar Jud. In my county they want private roads with public access (whatever that is). Basically it comes down to the county doesn't wan't to maintain the road. What if they had done this from the beginning. Then there wouldn't have been any development as nobody could get to their property without a private easement. So sooner or later in Utah a 10 year statute will kick in that says if the road has been open continuously for public access it becomes a public road. Who will need to maintain it then?
So I'm trying to convince the county that they need to take dedications of public roads but they need to require the improvements in place from developers before they accept the dedication. Then all they need to do is maintain an improved road instead of building the road. There is also a state fund that gives them maintenance money per mile for all their roads. It's fairly standard procedure in most places but seems quite strange to the folks in my rural county for some reason. I think there was a long period after the initial settlement of the area when there wasn't much development and they forgot about the need to provide new public roads.
> Yes, but I'll bet they (the homeowners) could put a gate across it and a member of the "general public" couldn't prevail to have it removed.
huh? How is it "public" access if the "public" doesn't have the right to use it?
I don't think it is public. I think it is for use by the homeowners, their guests, and service personel (e.g. Fed Ex trucks)etc.