Real Estate Law

Have real estate law questions? Ask a real estate lawyer.

Ask a Lawyer,
Get an Answer ASAP!

This answer was rated:

The builder of the homes in our HOA is planning to use an…

The builder of the...

The builder of the homes in our HOA is planning to use an easement to extend the street to a neighboring property that he owns without trying to pay the required maintenance for the private street (which is required in our CC&Rs). He also wants to use a portion of the the neighboring property for commercial purposes, which invalidates the easement based on our CC&Rs. What recourse do we have and how strong a case would we have?

Lawyer's Assistant: What steps have you taken so far? Have you prepared or filed any paperwork?

We haven't filled paper work yet

Lawyer's Assistant: Where is the home located?

Mousa Ct, San Jose, CA 95135

Lawyer's Assistant: Anything else you want the lawyer to know before I connect you?

This is the key portion of the CC&R that applies in this case:

Show More
Show Less
Ask Your Own Real Estate Law Question
Customer reply replied 2 months ago
The key portion of the CC&R is here:2.9.2 Reservation of Easements. Declarant grants to the owner of the Annexable Property in Exhibit A or any portion thereof as the dominant tenement a nonexclusive easement over the Common Area as the servient tenement for ingress and egress over the private streets and walkways situated on the servient tenement; for access to and use of (including the right to install, maintain, repair or replace) any utility lines, cables, wires, pipes, meters or other equipment installed within, on or over the servient tenement in order to provide utility or related service to the dominant tenements, including water, electricity, telephone, gas, telecommunications, fiber optic cables, sanitary sewer or storm drainage lines or equipment; and for such access over the private streets as may be reasonably necessary to construct, sell, lease, maintain, repair and replace any Improvements and landscaping within the dominant tenements. The easements granted herein are effective only if the Annexable Property is developed for residential use and are not applicable if developed for commercial purposes. If developed for commercial purposes, the sewer line easement described in Section 2.12 shall remain in effect.2.9.3 Allocation of Maintenance and Repair Costs. Pending annexation and the commencement of assessments, if the owner of the Annexable Property or any portion thereof exercises the easement rights reserved in Section 2.9.2 above in favor of the Annexable Property, the owner of that portion of Annexable Property shall pay an equitable share of the cost of the maintenance, repair, replacement and insurance of any Improvements located within the Common Area that are used by the occupants of the applicable portion of the Annexed Property. The Owner's allocable share shall be based on the amount of use, type of use and other relevant factors. The Owner shall remit to the Association its share of the costs within 30 days after receipt of demand for same. If Owner fails to pay its share when due, the Association may bring an action in any court of competent jurisdiction to recover the cost, together with interest therein at the rate of 12% per annum, but in no event greater than the maximum rate authorized by law. In such action, the prevailing party shall be entitled to recover costs and attorneys' fees.
Pending annexation and the commencement of assessments, if the owner of the Annexable Property exercises the easement rights reserved in Section 2.9.2 above if favor of the Annexable Property, the owner shall pay an equitable share of the cost of the maintenance, repair, replacement and insurance of any Improvements located within the Common Area that are used by the occupants of the applicable Annexable Property. The Owner's allocable share shall be based on the amount of use, type of use and other relevant factors. The Owner shall remit to the Association its share of the costs within 30 days after receipt of demand for same. If Owner fails to pay its share when due, the Association may bring an action in any court of competent jurisdiction to recover the cost, together with interest therein at the rate of 12% per annum, but in no event greater than the maximum rate authorized by law. In such action, the prevailing party shall be entitled to recover costs and attorneys' fees.
If there are any disputes regarding the Owner's allocable share of the cost, the dispute shall be submitted to mediation and, if necessary binding arbitration, to the American Arbitration Association (AAA), any successor thereto or any other alternative dispute resolution provider acceptable to the parties for resolution. If the mediation is unsuccessful, the dispute shall be resolved by binding arbitration in accordance with AAA's commercial rules. The mediation and arbitration shall be held in the county where the Development is located. The parties shall be entitled to the discovery rights provided by Code of Civil Procedure section 1283.05. The arbitrator may award costs and attorneys' fees to the prevailing party. The arbitrator's decision shall be binding on the parties and may be enforced in any court of competent jurisdiction. If the Owner fails to initiate mediation within the 30-day period after receipt of written demand from the Association for payment of the Owner's share of the cost, it shall be presumed conclusively that the Owner has waived its mediation and arbitration rights with respect to that demand, and the Association may commence legal action to collect the Owner's share of the costs.
Answered in 2 hours by:
6/3/2018
socrateaser
socrateaser, Lawyer
Category: Real Estate Law
Satisfied Customers: 40,170
Experience: Attorney and Real Estate broker -- Retired
Verified

NOTICE: If you are presented with an offer for a phone consultation, which may appear to have been sent by me, please know that this is an automated website offer, and that I do not participate in this Justanswer program. If you would like to correspond with me directly, whether by phone, email or otherwise, then do not accept the phone call offer, because your request will be accepted by a random contributor, who may or may not be licensed to practice law in your jurisdiction – and, I will be unable to provide further assistance. Instead, simply type to me that you would like my direct contact info, and I will send you a specific offer for that purpose (customary legal services fees will apply).
Hello,
I am a member of the State Bar of California, the Bar of the U.S. District and Bankruptcy Court for the Central District of California (San Luis Obispo, Santa Barbara, Ventura, Los Angeles, Orange, San Bernardino, Riverside Counties), the Bar of the U.S. Tax Court, I am a California licensed real estate broker, and I have comprehensive information about all areas of California and federal law.

Assuming that the "Annexable Property in Exhibit A" is the property to be developed, then the owner of that property must pay the fees specified in the CC&Rs, and must not use the property for any commercial purpose(s).

The issues seem pretty straightforward to me. I don't see how the owner can make a contrary argument (though, I'm pretty sure that some argument will appear, once you bring a legal action to enforce your rights under the CC&Rs.

If you need more personal attention than can be provided in this public forum, I can arrange to send you an offer of direct correspondence, and we can take the discussion offline into a confidential setting (customary legal services fees will apply). Please let me know if you're interested.

If not, then I hope I've answered your question. Please let me know if you require further clarification. And, please provide a positive feedback rating for my answer (click 3, 4 or 5 stars) -- otherwise, Justanswer retains your entire payment, and I receive nothing for my efforts in your behalf. Note: If you cannot find the rating button on your webpage, please just type in your rating in a response to this note, and customer service will apply the rating for you.

Ask Your Own Real Estate Law Question
Customer reply replied 2 months ago
When we discussed this matter then the builder in person and told him that our CC&Rs specifically said: 1) the easement didn't apply if there was any commercial use ; 2) if he did use the easement he'd have to be part pay dues, he said "Is this your legal opinion?" He also claimed that the fence he built was his and that he could tear it down as he chose.If we decided to take legal action, what would be the ballpark cost? Our HOA has some funds, but definitely not for a protracted legal battle.

The problem that I see concerning legal action is that the CC&Rs require arbitration for failure to pay the additional assessment fees. The provision does not cover the use of the easement for commercial purposes. So, there is a narrow question of whether or not you can force the owner into arbitration, before he fails to pay the assessment fees -- because until that occurs, your recourse would be solely to the courts.

In arbitration, you could probably get it done for $10K. In court, you're looking at $50K. Of course, most cases settle before an arbitration award or a court judgment -- which could reduce your legal expenses. But, if you start, you need to be prepared to pay for the entire case -- otherwise, you're unlikely to find a lawyer to represent your association.

The comment, "is this your legal opinion," is the typical rubbish thrown around by laypersons (and attorneys) who don't actually know the law. And, it's worked, because you didn't push back. If there were an attorney present, he/she should have countered with, "If you want to put it to the test, I'll file a complaint and then we'll see who's blowing smoke."

But, your'e not a lawyer, so it was very effective intimidation from the builder.

Bot***** *****ne, if you don't fight for your rights, you will lose them. That's been the way of the world since the beginning of time. But, there is also the potential consideration that the new development may increase your property values. I can't evaulate that possibility, but I think you may want to consider it, because sometimes the quest for "justice" operates against one's economic interests.

I hope I've answered your question. Please let me know if you require further clarification. And, please provide a positive feedback rating for my answer (click 3, 4 or 5 stars) -- otherwise, Justanswer retains your entire payment, and I receive nothing for my efforts in your behalf. Note: If you cannot find the rating button on your webpage, please just type in your rating in a response to this note, and customer service will apply the rating for you.

Ask Your Own Real Estate Law Question

Hello again,

I see that you have reviewed my answer, but that you have not provided a rating. Do you need any further clarification concerning my answer, or is everything satisfactory?

If you need further clarification, concerning this matter, please feel free to ask. If not, I would greatly appreciate a positive feedback rating for my answer (click 3, 4 or 5 stars) – otherwise, Justanswer retains your entire payment, and I receive nothing for my efforts in your behalf. Note: If you cannot find the rating button on your webpage, please just type in your rating in a response to this note, and customer service will apply the rating for you.

Thanks again for using Justanswer!

socrateaser
socrateaser, Lawyer
Category: Real Estate Law
Satisfied Customers: 40,170
Experience: Attorney and Real Estate broker -- Retired
Verified
socrateaser and 87 other Real Estate Law Specialists are ready to help you
Ask your own question now
Customer reply replied 2 months ago
I don't think it is in the economic interest of our HOA to have a non-HOA house that is older, single-story, and doesn't match the style any of the houses on our private street. What if we simply opted to put at gate at the entrance which could only be opened by HOA members?

Hello again,

Per website policy, please open a new Q&A session for your new question and reserve it only to me. This will cost you nothing extra, because you are a subscribing member to Justanswer -- and, I will receive appropriate compensation for my additional efforts in your behalf.

Thanks again for using justanswer!

Ask Your Own Real Estate Law Question
Customer reply replied 2 months ago
How do I reserve it only for you?

You can put my userid in the title of your new question ("ToCustomer only"). There's also a means to expressly request a specific expert -- but, since I've never used the customer-facing interface of the website, I regret that I'm unaware of the precise steps. You can certainly contact customer service and request assistance.

Thanks for using Justanswer!

Ask Your Own Real Estate Law Question
Was this answer helpful?

How JustAnswer works

step-image
Describe your issueThe assistant will guide you
step-image
Chat 1:1 with a real estate lawyerLicensed Experts are available 24/7
step-image
100% satisfaction guaranteeGet all the answers you need
Ask socrateaser Your Own Question
socrateaser
socrateaser
socrateaser, Lawyer
Category: Real Estate Law
Satisfied Customers: 40,170
40,170 Satisfied Customers
Experience: Attorney and Real Estate broker -- Retired

socrateaser is online now

A new question is answered every 9 seconds

How JustAnswer works:

  • Ask an ExpertExperts are full of valuable knowledge and are ready to help with any question. Credentials confirmed by a Fortune 500 verification firm.
  • Get a Professional AnswerVia email, text message, or notification as you wait on our site. Ask follow up questions if you need to.
  • 100% Satisfaction GuaranteeRate the answer you receive.

JustAnswer in the News:

Ask-a-doc Web sites: If you've got a quick question, you can try to get an answer from sites that say they have various specialists on hand to give quick answers... Justanswer.com.
JustAnswer.com...has seen a spike since October in legal questions from readers about layoffs, unemployment and severance.
Web sites like justanswer.com/legal
...leave nothing to chance.
Traffic on JustAnswer rose 14 percent...and had nearly 400,000 page views in 30 days...inquiries related to stress, high blood pressure, drinking and heart pain jumped 33 percent.
Tory Johnson, GMA Workplace Contributor, discusses work-from-home jobs, such as JustAnswer in which verified Experts answer people’s questions.
I will tell you that...the things you have to go through to be an Expert are quite rigorous.

What Customers are Saying:

Mr. Kaplun clearly had an exceptional understanding of the issue and was able to explain it concisely. I would recommend JustAnswer to anyone. Great service that lives up to its promises!

Gary B.Edmond, OK

My Expert was fast and seemed to have the answer to my taser question at the tips of her fingers. Communication was excellent. I left feeling confident in her answer.

EricRedwood City, CA

I am very pleased with JustAnswer as a place to go for divorce or criminal law knowledge and insight.

MichaelWichita, KS

PaulMJD helped me with questions I had regarding an urgent legal matter. His answers were excellent.

Three H.Houston, TX

Anne was extremely helpful. Her information put me in the right direction for action that kept me legal, possible saving me a ton of money in the future. Thank you again, Anne!!

ElaineAtlanta, GA

It worked great. I had the facts and I presented them to my ex-landlord and she folded and returned my deposit. The 50 bucks I spent with you solved my problem.

TonyApopka, FL

Wonderful service, prompt, efficient, and accurate. Couldn't have asked for more. I cannot thank you enough for your help.

Mary C.Freshfield, Liverpool, UK

< Previous | Next >

Meet the Experts:

Barrister

Barrister

Lawyer

12,142 satisfied customers

17 years real estate, Realtor. Landlord 26 years

Infolawyer

Infolawyer

Lawyer

8,377 satisfied customers

Experienced lawyer

Ray

Ray

Lawyer

8,253 satisfied customers

Texas Attorney for 30 years dealing in real estate

LawTalk

LawTalk

Attorney

6,208 satisfied customers

I have 30 years legal experience. Additionally, in CA I held a Real Estate Broker's license.

Dimitry Esquire

Dimitry Esquire

Attorney

5,526 satisfied customers

JA Mentor, multiple jurisdictions, specialize in business/contract disputes, estate creation & admin

Ely

Ely

Counselor at Law

4,998 satisfied customers

Qualified attorney in private practice including business, family, criminal, and real estate issues.

P. Simmons

P. Simmons

Lawyer

3,572 satisfied customers

12+ yrs. of experience including real estate law.

< Previous | Next >

Related Real Estate Law Questions
I have a 2 mile driveway, dirt road, very expensive to
I have a 2 mile driveway, dirt road, very expensive to maintain so I can get to work. Some "neighbors" refuse to help or pay. How can I get them to pay their fair share and recover the previous costs?… read more
Irwin Law
Irwin Law
Juris Doctor JD
7,187 satisfied customers
If I buy land with no document easement but a 50' right of
If I buy land with no document easement but a 50' right of way from the city, and want to build a house and need water from the main in the neighbors yard. Do I have to buy an easement from the neighb… read more
Attyadvisor
Attyadvisor
Doctoral Degree
8,366 satisfied customers
Have an easement -live in the back house -the mainwaterline
have an easement -live in the back house -the mainwaterline is also underground of the easement. Front property owners later put driveway without consent. Now waterline is busted and must dig up drive… read more
CalAttorney2
CalAttorney2
Attorney
Doctoral Degree
8,845 satisfied customers
My California property was originally one lorge parcel with
My California property was originally one lorge parcel with one access road to the principle residence. Then about 60 yrs ago, a portion of the property over which the access road ran, was granted to … read more
Irwin Law
Irwin Law
Juris Doctor JD
7,187 satisfied customers
Is there a law in Texas requiring a land owner of the
Is there a law in Texas requiring a land owner of the subservient property for the private road that requires the land owner to fix it.… read more
mkc1959
mkc1959
Attorney
Doctor of Jurisprudence
616 satisfied customers
If I have an easement that has been established with the next
If I have an easement that has been established with the next door neighbor for driveway access (previously established because the two properties were owned by the same family), and the bridge that g… read more
Ely
Ely
Counselor at Law
Juris Doctor
4,998 satisfied customers
Neighbor Wont Pay Fair Share. Our Washoe County Nevada private
Neighbor Won't Pay Fair Share. Our Washoe County Nevada private road is not in a homeowners association. Each of 16 land owners owns to the center line of the road and has granted an easement to every… read more
Law Pro
Law Pro
Doctoral Degree
19,000 satisfied customers
We and one of our neighbors (dominate estates) share an easement,
We and one of our neighbors (dominate estates) share an easement, and it's maintenance, over one side of the land of another neighbor (servient estate). New owners have purchased the servient estate a… read more
Barrister
Barrister
Lawyer
Doctoral Degree
12,142 satisfied customers
access and utility easements, I have 2 affecting my property.
access and utility easements, I have 2 affecting my property. In one I am servient a result of easement of neccessity to a landlocked property. Does the dominant estate have the right to grade, improv… read more
Law Pro
Law Pro
Doctoral Degree
19,000 satisfied customers
I live in California and am a Board member of an HOA I would
I live in California and am a Board member of an HOA I would like to raise HOA fees to help pay for fences in our single family home community (42 homes). Is it legal… read more
P. Simmons
P. Simmons
Lawyer
Doctoral Degree
3,572 satisfied customers
I have a easement across my property that was put in years
I have a easement across my property that was put in years ago before the other property was change to commercial. My problem now is the property just sold and the new owner wants to put up a cell tow… read more
Law Pro
Law Pro
Doctoral Degree
19,000 satisfied customers
A 10x100 drainage easement for a culvert and end of line
A 10'x100' drainage easement for a culvert and end of line water co. flush valve runs between my neighbors propoerties. One of the neighbors built a wood and dirt driveway, a shed, and set thier propa… read more
Law Pro
Law Pro
Doctoral Degree
19,000 satisfied customers
My builder set my home to be modified zero lot line home 20
My builder set my home to be modified zero lot line home 20 yrs ago. The west side of my home backed to my neighbor's yard which is my easement. My property line is about 8 feet away from my wall ther… read more
socrateaser
socrateaser
Lawyer
40,170 satisfied customers
We have a dedicated storm drainage easement along one side
We have a dedicated storm drainage easement along one side of our property which the developer retained rights to. Our POA is trying to force us to maintain the easement. Where can I go to find case l… read more
Maverick
Maverick
Doctoral Degree
6,342 satisfied customers
Our neighbors have an easement to use our driveway to access
Our neighbors have an easement to use our driveway to access their property. It has a maintenance agreement requiring them to "share equally in the maintenance of the roadway constructed on the easeme… read more
Joseph Leon
Joseph Leon
Member
Juris Doctorate
270 satisfied customers
FOR LEGALLYSOUND... I have posted 4 different issues here over
ANY EXPERT, please. I have posted 4 different issues here over the last 3 days and have since been informed that the laws are entirely different here. All of you folks came to the same conclusion over… read more
socrateaser
socrateaser
Lawyer
40,170 satisfied customers
I live on a private road and my property, like my neighbors,
I live on a private road and my property, like my neighbors, is made up of 2 parcels, one of which is a 20' wide right away allowing my neighbors to use it as a roadway. We have a road association whi… read more
N Cal Atty
N Cal Atty
Doctoral Degree
59 satisfied customers
We have just purchased land and have an easement, perpetual
We have just purchased land and have an easement, perpetual non-exclusive easement (30ft) for ingress and egress and placement of utilities. The easement was granted to the person we purchased the lan… read more
Dan
Dan
Semi-Retired; Part-Time Consultant
Doctoral Degree
872 satisfied customers

DISCLAIMER: Answers from Experts on JustAnswer are not substitutes for the advice of an attorney. JustAnswer is a public forum and questions and responses are not private or confidential or protected by the attorney-client privilege. The Expert above is not your attorney, and the response above is not legal advice. You should not read this response to propose specific action or address specific circumstances, but only to give you a sense of general principles of law that might affect the situation you describe. Application of these general principles to particular circumstances must be done by a lawyer who has spoken with you in confidence, learned all relevant information, and explored various options. Before acting on these general principles, you should hire a lawyer licensed to practice law in the jurisdiction to which your question pertains.

The responses above are from individual Experts, not JustAnswer. The site and services are provided “as is”. To view the verified credential of an Expert, click on the “Verified” symbol in the Expert’s profile. This site is not for emergency questions which should be directed immediately by telephone or in-person to qualified professionals. Please carefully read the Terms of Service (last updated February 8, 2012).

DISCLAIMER: Answers from Experts on JustAnswer are not substitutes for the advice of an attorney. JustAnswer is a public forum and questions and responses are not private or confidential or protected by the attorney-client privilege. The Expert above is not your attorney, and the response above is not legal advice. You should not read this response to propose specific action or address specific circumstances, but only to give you a sense of general principles of law that might affect the situation you describe. Application of these general principles to particular circumstances must be done by a lawyer who has spoken with you in confidence, learned all relevant information, and explored various options. Before acting on these general principles, you should hire a lawyer licensed to practice law in the jurisdiction to which your question pertains.

The responses above are from individual Experts, not JustAnswer. The site and services are provided “as is”. To view the verified credential of an Expert, click on the “Verified” symbol in the Expert’s profile. This site is not for emergency questions which should be directed immediately by telephone or in-person to qualified professionals. Please carefully read the Terms of Service (last updated February 8, 2012).

Show MoreShow Less

Ask Your Question

x