Here is the deal. There is a lot more going on, but just to narrow the focus to one issue, somewhat simplified. 8 lots share a driveway easement. That easement document states that all 8 shall share, at a proportional rate for length to certain defined points where their individual drives are supposed to attach to the drive, maintenance cost for this long, steep drive up Signal Mountain.
2 owners, out of the 8, actually use the drive. 3 owners have accessed their houses by other drives not connected with this easement and will never, as far as anyone can guess or tell, use this drive. The other lots are vacant, have no homes built on them, and may not have homes built on them for many years...or ever, and have other access and may never use this drive....but....
The document makes no provision for anything other than all 8 lot owners will share in the maintenance cost of the drive. My client is making that demand of the other lot owners. I want to take their side, but I do not see any "out" per say in the easement agreement. There are no, if they build a drive, or use the drive, or ever build a house. Just a flat out statement that they will all pay an proportional share in the driveway maintenance.
What do you think?
Our county has a shared maintenance agreement standard statement.
One of the items is that all disputes shall be settled in a
court of proper jurisdiction or alternative dispute resolution
service.
Have any of the owners incurred any costs yet to maintain the easement ?
I want to take their side
You can't be an advocate in the same sense as an attorney. Don't try to practice law as a surveyor. Don't ever think of going there.
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This sounds like a proper way to handle things to me. Those who have an alternate access available still have the ability to benefit from this easement. It is their choise to use or not use. Still, they should pay.
The unsold lots would have their share paid by the developer. That sounds fair as he can build that expense until sold into his asking price for a specific lot.
Somehow I had imagined if no one had incurred any costs, and maybe a majority of the owners weren't in favor of keeping that easement, they could work to remove the maintenance fees covenant. I really don't know.
Sam:
Who is your client and what position will beneift them the most?
If your client is one of the owners with other access, a quitclaim deed giving up their rights to the share access would reduce the likelyhood of their responsibility to share costs (perahsp to zero).
If your client is one of the owners of the vacant parcels, remind them that a good part of the value of thier land comes from the fact that it has a maintained access.
If your client is one of the other owners, point out that the agreement remains in effect until otherwise.
In ay case, your client will need the advice of a good real estate attorney with experience in easements and agreements. Like land surveyors, just because they call themselves attorneys does NOT mean they know enough about any particular are of the law to properly practice.
We DO advocate for our clients. Perhaps not with the alacrity we might if we were attorneys. This case is a perfect example. A number of solutions present themselves. Although all cases should be discussed, the one to put forward depends uppon who is the client.
All lots are sold and in individual ownership. The original developer is no longer in the picture, but is still around, but I don't think he has any interest or rights, or any involvement as far as the situation goes. I don't see this going to court, but he could testify as to "intent".
This should be a warning to those preparing joint use easements to be very carefull in the wording. One of the questions I raised was what constitutes maintenance. These are very nice properties. Would maintenance for example include landscaping and mowing mainenance. This drive is almost 1000 feet long up a steep mountainside and landscaped all the way. Paved and with concrete curbs. Possible cost could include sealing it with asphalt sealer every year.
An easement grants certain rights of use. It is a one-way transfer - it doesn't usually require the grantee to take on any future obligations.
A lawyer may be able to interpret the document as something more than an easement, like a homeowners' association agreement, but if no one signed except the grantor, it will be a difficult line to argue.
> This should be a warning to those preparing joint use easements to be very careful in the wording. One of the questions I raised was what constitutes maintenance. These are very nice properties. Would maintenance for example include landscaping and mowing maintenance. This drive is almost 1000 feet long up a steep mountainside and landscaped all the way. Paved and with concrete curbs. Possible cost could include sealing it with asphalt sealer every year.
This should be a warning for those thinking about purchasing property with restrictive covenants or joint maintenance easements; KNOW WHAT YOU ARE GETTING INTO BEFORE YOU BUY!
I would think that if you have to pay for a portion of it, you should have a say in what that will be.
There is plenty of property out there, you don't have to buy it, if you don't like what comes with it.
Our lot had a shared private road right of way, and we had a homeowners assoc. to try to deal with maintenance costs issues.
There were lot owners who had homes and lived onsite and there were owners all over the world who owned lots but were not present. Assoc. meetings were never very satisfying, as everyone had a different point of view about what they wanted, and we spent a lot on private maintenance. Ultimately some split off to form their own private (side) rd maintenance assoc. Some never contributed anything at all to costs, and the rest finally petitioned the State to take over Maintenance, but we had to contribute half the costs of bringing the remaining road up to the State standard. What a mess it was, we had to use an attorney and still had unresolved issues.
Bill point is an interesting one. I met with the client and delivered all my work this morning. Aparently there are already attorneys involved. Hopefully they can come to some kind of agreement. These are 500,000 to 1,000,000+ properties, so there is more money here on the table than what you normally run into.
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