Note: The DearEsq free 'ask a lawyer' site is offered as a free informational service to the public and is not intended as legal advice. Laws vary from state-to-state, and in addition every situation is unique, and relevant facts may not be known. The answer to the question posed below may not apply to in your state or to your situation. For legal advice in your state and your situation you should consult with an attorney in your state who is familiar with the rules and laws in your state.
“We live in a residential development in Virginia. All properties in our development are single-family homes, and the community is managed by a Home Owners’ Association. Our property contains a 10- foot wide pedestrian easement, running from the street to the back of our rectangular-shaped lot. This easement is recorded on the county survey. Behind our property are trees and open grass space. The land behind our property is owned by and is a part of our subdivision development. I believe there are a handful of other properties in our development that feature similar pedestrian easements, all of which are for access to the trees and open grass space behind the lots.
There are no signs demarcating the easement. It is essentially just grass, existing on our front, side, and back yards. Currently, the only people who use the easement are neighborhood children, many of whom ride their bicycles (and on one occasion, a gasoline-powered motorized scooter) through our front yard, past our house, through the backyard, and into the trees beyond. Our lawn is suffering serious damage because of this.
We would like to fence-in our lot to stop the neighborhood children from entering our yard. All fences need to be approved by the HOA. However, I am anticipating a refusal for a fence application due to the pedestrian easement. Is it possible to vacate the pedestrian easement, and if so, how? Thank you.”Well, the easement has to belong to someone, and usually the way you get rid of an easement is by buying it back from that someone. Unfortunately, in this case, there’s a good chance that the HOA is the owner of the easement, and you may find that they are unwilling to sell.
Question: It is possible in some circumstances for an easement to be destroyed by abandonment, but it sounds like you have the opposite problem (the easement being used more, not less).All that having been said, that doesn’t mean that you are entirely without options. The use of an easement needs to be reasonable, and not do undue damage to your property. Further, the easement holder is normally responsible (at least in part) for maintenance and upkeep of the easement. So you do have some leverage in your negotiations with the HOA regarding the fence.
Answer:
I would suggest that you consult with a local real estate attorney to confirm the local laws applicable to your situation, before you meet with the HOA to discuss this.
