Can an HOA Demand Changes of an Easement Although the Property Owner is Resistant?

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“As a small Home Owners Association in Washington state, we have a plated 60 foot access & egress easement which has existed for over 20 years.

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The easement access is only one of two to our commons area, but, over the years the 60 foot easement has eroded to only a few feet and the road is now at the margins of a 20 foot sheer drop and has become a safety and liability concern.

The easement in question passes across a tiny segment of the 5 acres of a single member’s property but they are exceedingly resistant to expanding the margin of the easement though the expansion will be into a completely unused area of their property and out of sight and will fully address their and our membership’s concerns of liability/risk.

We (the Home Owner’s Association Board) wish to expand the easement slightly (10-20 feet wide X 50 feet long) to markedly improve the sustainable traversable surface and safety for and to our members and also reduce the liability concerns to both the Association and the owners of the property across which the easement passes.

The easement is presently used dominantly by the owners of the property in a shared capacity with other members of the Association of which they are part. The slightly expanded easement would be used in the same shared manner.

The owners of the property across which the plated easement passes have voiced their wish to have the other association members cease using the access easement and give them exclusive rights to that easement access as ‘their property’.

Our CC&R’s permit the Board and the Association to carry out easement expansions for the benefit of the membership, including the resistant member. We do not wish to relinquish (relieve) this very important access to our extensive common areas.

Our question is:

Given the facts above, within reason, and without damaging in any way the associate member’s property or its value does our Homeowner’s association have a right to demand the expansion of the easement margin?”

Ordinarily, the owner of an easement has no right to modify, expand, or move the easement without the landowner’s permission. Similarly, the property owner has no right to exclude the easement owners from using their easement without their permission.

An easement of record is frozen, and can only be modified by the agreement of all parties.

HOWEVER, in your situation, you have terms in the CC&Rs which provide for expanding an easement. When you purchase a property subject to CC&Rs, you take subject to the terms therein. In essence, by taking subject to the CC&Rs, this owner has pre-agreed to modify the easement, as specified in the CC&Rs.

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Author: House Attorney

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