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.
‘Hello, the driveway to our home serves also as a utility easement for the local water company. Recently, after four years of living here, the HOA has instructed the neighborhood security to use our driveway to “check” the status of the water towers located behind our home. These drive-by’s occur everyday, sometimes several times a day. We have requested that they cease but they have not to this point. As far as I can determine, we are not obligated to provide access to anyone but the utility company. Can someone please give me an idea of what my rights are in such a case.’The first thing to do is check the document that created the utility easement. This will inform you who is the beneficiary of the easement-the utility company, the HOA, or both.
Question: If it looks to you like the HOA doesn’t have any rights, I would ask them point blank what gives them the authority to use this easement. There may be a good answer, but it ought to be their job to provide it, not your job to show that it doesn’t exist.Even if they do have the right to use this easement, coming by multiple times a day just to “check” seems excessive. Is there something unusual about this water tower that they think it will change status in a matter of hours? If not, they may be exceeding the scope of the easement, even if they are the correct party.
Answer:
Unfortunately, scope arguments like that tend to be pretty fact-specific which means that there are always arguments on both sides. It probably wouldn’t hurt at that point to consult with a local attorney and get a disinterested opinion on the matter before deciding how much you want to fight over this.
