Q: I am president of a small homeowner association (HOA) in western North Carolina. There are no HOA-owned common areas, and the HOA is responsible only for maintaining the signs, landscaping and lighting at our entrance. Our streets are public and state-maintained. Our annual assessments are low, as they only need to cover snow and ice removal and maintenance of the landscaped entrance to our community.
Our problem is with the entrance. We have two large signs with planters on the corners of the lots on both sides of the entrance. However, the developer did not designate this entrance as a common area. Iinstead, it is part of the lots on both corners of the entrance.
One of the lot owners has refused to allow the HOA onto his lot to maintain the entrance, and he has removed all of the original landscaping, and now the entrance on his side doesn’t match the entrance on the other side. He says that it is his property and the HOA has no right to come onto his lot and change the landscaping. What are our options here?
There are generally two ways that a developer can handle the entrances to a community.
The portions of land containing the entrance monuments can be marked off as separate parcels and deeded to the HOA as a common area or the monuments can be located on the corner lots within an “easement” area.
The easement area is typically reflected on the plat maps for the community recorded at the county’s Register of Deeds office.
An easement is a legal interest in property that grants someone other than the owner of the lot the legal right to enter the property for a specified purpose. The most common examples are easements in favor of utility providers.
In your case, an easement, if one exists, would grant the HOA the legal right to enter the owner’s lot to install and maintain monuments, landscaping, lighting, irrigation and so on.
The exact terms of the HOA’s easement rights would be described in your community’s Declaration of Covenants, Conditions and Restrictions (“CCRs”) and/or on the recorded plat maps for your community. Hopefully, either the plat maps or your community’s CCRs have language reflecting an easement in favor of the HOA to maintain the entrance.
If the developer did not have an easement area reserved on the plat maps, and your CCRs do not mention an easement, then I am afraid you may be at the mercy of the lot owner.
Without an easement, the HOA has no legal authority to enter the lot and maintain the entrance without the lot owner’s permission.
Charlotte attorney Michael Hunter represents community and condominium associations for the firm of Horack Talley. Email questions to firstname.lastname@example.org.
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