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Ely, Counselor at Law
Category: Real Estate Law
Satisfied Customers: 102379
Experience:  Qualified attorney in private practice including business, family, criminal, and real estate issues.
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Sir, my hoa is requesting a 5 foot easement along the west

Customer Question

my hoa is requesting a 5 foot easement along the west side of my property. They requested this easement before & I & others refused to sign over easement to them. they have now sent a certified letter requesting easement. Also stating that they are going to proceed with construction of a fence. If I do not sign over the easement I will be responsible for cost and maintenance of this fence.
I attended the last hoa meeting when this issue first came up. They were deceptive on the fence description stating a concrete.wood or pvc. At the meeting it came to lite they intended to do a pvc fence period. I expressed that they did not require a 5 foot & I would grant them a 2 foot easement and had no interest in a pvc fence. I believe their intentions are to set back the new fence 5 feet. Can they force this?
Submitted: 1 year ago.
Category: Real Estate Law
Expert:  Ely replied 1 year ago.

Hello and welcome to JustAnswer. Please note:This is general information and is not legal advice. No specific course of action is proposed herein, and no attorney-client relationship or privilege is formed by speaking to an expert on this site. By continuing, you confirm that you understand and agree to these terms.

I am very sorry to hear about this situation. Understand unless the HOA CC&Rs or declarations state so, the HOA cannot force an easement on the individual on the individual's private, non-common ground area.

Nor can they force a fence on one's private, non-common ground area, and by the same virtue, cannot request payment for said fence.

If the HOA attempts to do this, one can sue for nuisance, trespass, and other related causes of action, asking for an injunction and damages, as well as attorney and legal fees.

If the HOA means to build a fence on its common ground, but make you solely responsible, then this becomes more of a subjective issue. The HOA has the right to make certain individuals liable for non-equal payments of HOA expenditures, but it needs a good reason to do so, such as the individual being responsible for a cost that the HOA has to absorb. As such, if the HOA saddles you with said debt in such a scenario, this may be challenged in Court as well.

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