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.
‘Can an HOA mandate an easement? I live in a 50+ home community in Oregon. When it was developed ~15 years ago, a path was proposed between our property and our neighbors. We are at the end of a hammer-head (dead end) and this would allow foot traffic to the street on the other side of our lot as a shorter route than using the street/sidewalk. At the time, the HOA voted against
the path and both properties have since been developed. We are the only owners of our 8 year old home. Every winter, children come sledding in our year (without permission) and adults stumble through our yard. Because our property is sloped and terraced with poor visibility during snow, this leads to damaged landscaping, broken landscape lighting, etc. This year, another resident suggested to the HOA that an easement does indeed exist. While I am certain it does not, does our HOA have the power to now MANDATE a new easement? If so, would they be responsible for creating/maintaining a path?’
It depends.
While it would be unusual for an HOA to retain the right to mandate an easement in the way you’re describing, it’s not impossible. You would need to check the HOA’s formation documents to see if such a right was retained. However, that would be extremely unusual: normally, you either create an easement or you don’t, because retaining the right to create an easement is so similar to an actual easement that the property value would be affected about the same.
That having been said, it might be to your advantage if the HOA does create an easement, even if they need your cooperation to do so. Clearly, you have association members using your property without permission, and I’m guessing you don’t have the time or the inclination to find out exactly who is trespassing and send them the bill for your landscaping.
With an easement normally comes the obligation not to unreasonably damage the property that the easement is on. So if the HOA has an easement, and association members are using it and damage your property, you can send the bill to the HOA and/or let them enforce the rules.
Another thing you should be aware of is that if the members are using your property without your permission for a sufficient amount of time (and that time period varies from state to state), they may have created a prescriptive easement, which they could then continue to use. Therefore, you should not wait to address this issue, since the association’s rights can change over time if you don’t.
