R.O.W. Problem

[bdhsfz6]

I belong to an association in a 14 lot subdivision which maintains a 1.25 mile 40' wide ROW which passes through all the lots. As per the individual deeds, we are all to share maintenance costs equally and contribute annual dues for this purpose.

One property owner in the middle of the subdivision, who refuses to pay any association dues, is trying to farm his 4 acre lot. He has installed electric livestock fences on the ROW, narrowing the normal 15' roadway to less than 10'. The association maintains shoulders on both sides of the 15' gravel road to allow vehicles to safely pass each other. Due to the fences, there are no shoulders on this 10' restricted portion and the road is effectively reduced to one lane.

To make things worse, this one lane section is on a steep slope with a sharp blind curve. It's a disaster waiting to happen, especially in Winter when the road is slippery. There have already been two close calls involving delivery drivers. In an attempt to minimize association liability should an an accident occur, warning signs and a 5 MPH reduced speed limit have been posted. Unfortunately, this is no guarantee that an aggressive lawyer won't go after the deeper pockets of the association instead of the limited means of the offending property owner.

This property owner has aggressively opposed all attempts to remedy the situation, even though the work would be paid for by the association. Property owners have been taken to small claims court in the past for refusal to pay dues. The judge in this rural county always sides with the "poor downtrodden property owner" and against the "big, bad, evil association". He knows he could be sued but his comment is, "So sue me. I've got nothing to loose". The problem is, the rest of us do!

We are at wits end trying to find a solution. Hiring a lawyer and taking him to court is a possibility but it would be expensive and, given the political climate around here, there is no guarantee of a favorable solution.

Any ideas would be greatly appreciated.

BTW, comments like "burn 'em out" or "lead poisoning" are tempting but not very helpful.

 

[2manyrocks]

Are you saying the association wants this landowner to stop, but your local judge won't rule in the association's favor? Why wouldn't the association take the landlowner to court, lose at the local judge, and then take it on appeal to have the local judge reversed? Aren't the costs of this including the legal fees the responsibility of the offending landowner under the association bylaws?

 

[scootr]

Wow an interesting problem. I'm here to watch as our 12 home subdivision let the HOA expire. Since then we have had a mobile home and water tank erected on the street edge and half the neighbors refuse to support the expense of maintaining the road we all share. Another new owner who refuses to maintain his property letting it overgrow with weeds and brush. All of this devalues all of the properties. Ugh
I would think you have the legal right to remove any fence the owner puts in the right of way.

 

[sea2summit]

Was part of a HOA one time...never again.

 

[K5lwq]

5 feet of a right away is not worth the hassle to me. But good luck.

 

[Tomtint]

A ROW and HOA are 2 separate things. In your deed, what you have a right to do and not do in your ROW should be pretty well defined. In most cases you will be permitted to use and maintain the ROW in all ways required to bring utilities and supply access your property. Blocking a portion of the ROW is frowned upon and you have the right to "maintain" that area as need be. If you feel a area has been infringed upon, Have it surveyed and reclaim the area in question. If a neighbour has blocked a road for their own benefit, It can be a serious public safety concern. Can a fire truck or ambulance become impeded in an emergency ?

 

[Rockbadchild]

My question would be, who own the land ?

 

[jb1390]

I belong to an association in a 14 lot subdivision which maintains a 1.25 mile 40' wide ROW which passes through all the lots. As per the individual deeds, we are all to share maintenance costs equally and contribute annual dues for this purpose.

One property owner in the middle of the subdivision, who refuses to pay any association dues, is trying to farm his 4 acre lot. He has installed electric livestock fences on the ROW, narrowing the normal 15' roadway to less than 10'. The association maintains shoulders on both sides of the 15' gravel road to allow vehicles to safely pass each other. Due to the fences, there are no shoulders on this 10' restricted portion and the road is effectively reduced to one lane.

To make things worse, this one lane section is on a steep slope with a sharp blind curve. It's a disaster waiting to happen, especially in Winter when the road is slippery. There have already been two close calls involving delivery drivers. In an attempt to minimize association liability should an an accident occur, warning signs and a 5 MPH reduced speed limit have been posted. Unfortunately, this is no guarantee that an aggressive lawyer won't go after the deeper pockets of the association instead of the limited means of the offending property owner.

This property owner has aggressively opposed all attempts to remedy the situation, even though the work would be paid for by the association. Property owners have been taken to small claims court in the past for refusal to pay dues. The judge in this rural county always sides with the "poor downtrodden property owner" and against the "big, bad, evil association". He knows he could be sued but his comment is, "So sue me. I've got nothing to loose". The problem is, the rest of us do!

We are at wits end trying to find a solution. Hiring a lawyer and taking him to court is a possibility but it would be expensive and, given the political climate around here, there is no guarantee of a favorable solution.

Any ideas would be greatly appreciated.

BTW, comments like "burn 'em out" or "lead poisoning" are tempting but not very helpful.

Is the right of way for a private road, leading to other properties? I would think that whoever is being affected by the narrowing of the road would be in the best position to pursue this.

I'm no lawyer, but I'd be skeptical that the entire HOA could be held liable for an issue that would occur on this one individuals property. Especially if there have been documented efforts to improve the roadway by the other owners. Further, even if the HOA is liable, that doesn't mean that all the other property owners are individually liable. So I wonder how much each individual actually has to lose? Worth consulting with a lawyer on that framework.

But if this road leads to someone's property, and then someone installed fencing that encroached on the 40 foot that is allowed for maintenance, I would think they would be in their rights to move the fencing to the edge of the ROW and perform improvements as they are needed. If it was my right of way, I might have a survey performed, then send a letter to homeowner to move the fence, then have it moved myself if nothing is done, and perform maintenance as needed. That is a separate issue from trying to collect HOA dues. Different problems.

As an aside, I find it a bit curious that a judge would continually rule against written contracts - unless they are poorly done. And as has been suggested, that decision could be appealed. Now, is it worth the legal costs for the bit of money you might be able to force out? Different question.

All that said, a legal outlet is often the worst way to deal with things like this. No one wins.

 

[bdhsfz6]

Are you saying the association wants this landowner to stop, but your local judge won't rule in the association's favor? Why wouldn't the association take the landlowner to court, lose at the local judge, and then take it on appeal to have the local judge reversed? Aren't the costs of this including the legal fees the responsibility of the offending landowner under the association bylaws?

The association simply wants him to move the fences back to the ROW line. Considering he is only "farming" 4 acres, he says he needs the space.

Yes, legal action is a possibility but it's both expensive and risky. Even if we were to prevail and a judge rules against him, he has no assets to attach except the value of his land. No judge is going to force a sale and kick him off his own land.

 

[bdhsfz6]

My question would be, who own the land ?

Each land owner owns the portion of the ROW that passes through his property.

 

[bdhsfz6]

Wow an interesting problem. I'm here to watch as our 12 home subdivision let the HOA expire. Since then we have had a mobile home and water tank erected on the street edge and half the neighbors refuse to support the expense of maintaining the road we all share. Another new owner who refuses to maintain his property letting it overgrow with weeds and brush. All of this devalues all of the properties. Ugh
I would think you have the legal right to remove any fence the owner puts in the right of way.

This may be true but none of us wants a physical confrontation. This man is unstable and who knows what he will do.

 

[bdhsfz6]

5 feet of a right away is not worth the hassle to me. But good luck.

I tend to agree personally but none of us are willing to risk losing everything in a massive lawsuit.

 

[MossRoad]

Kinda had a quick laugh as an ad with a cat licking itself came up between posts.



As for the one property owner not complying with the HOA rules, and a judge refusing to enforce them, get the HOA lawyer on them. Run it up to the next level court, and charge the non-complying owner the legal fees. See if the HOA can get X multiple of judgement, too. The bigger the potential loss, the more likely a person might reconsider their actions.

Good luck.

 

[bdhsfz6]

A ROW and HOA are 2 separate things. In your deed, what you have a right to do and not do in your ROW should be pretty well defined. In most cases you will be permitted to use and maintain the ROW in all ways required to bring utilities and supply access your property. Blocking a portion of the ROW is frowned upon and you have the right to "maintain" that area as need be. If you feel a area has been infringed upon, Have it surveyed and reclaim the area in question. If a neighbour has blocked a road for their own benefit, It can be a serious public safety concern. Can a fire truck or ambulance become impeded in an emergency ?

All good points.

Even though the ROW is clearly outlined in the deeds, it has been proven unenforceable in our local courts. Taking it to a higher court is a possibility but would likely cost more than we can afford. Even if we were to prevail and the property owner forced to pay legal fees, he has no assets except the value of his land. No judge is going to force a sale and throw him and his young family off their land. Then there is the question of who is on the hook for the outstanding legal bills.

 

[2manyrocks]

The HOA would have to pay the legal bills in cash, but may have a lien against the landowner the priority and enforceability of which depends on the HOA documents and local law.

If this is really a public safety issue, your judge might see safety as a different issue than simply HOA v landowner.

 

[jb1390]

This may be true but none of us wants a physical confrontation. This man is unstable and who knows what he will do.

Has he made any threats? Get a professional survey. Get the cops involved. Hire a company to move the fence. Tell the cops that the company will be moving the fence. If landowner disagrees with the survey, he's within his rights to get his own survey. Video record any interactions with the individual.

Saying he's not going to honor the ROW and purposefully installing fencing on the ROW because he wants more property won't hold up.......If there are disagreements about where the ROW actually is, that's another story.

I would think dealing with this by survey first, letter second, cops third, pay company to move the fence fourth would keep this out of court, unless he tries to sue. Which, if you have a survey, won't go anywhere.

I don't think you are at risk of losing everything in a "massive lawsuit". First, the HOA is separate from each landowner. Second, you have homeowner's insurance. Your insurance company will pay for a lawyer etc should anything happen. Further, if something happens that's not on your property, how would it possibly extend to you? And even if something happens, that does not automatically mean there was negligence. If you are really worried on this front, talk to a lawyer and an insurance agent to ensure you have protection you feel comfortable with. If the HOA doesn't have an insurance policy and that's your primary concern, that would likely be a cheaper solution than court.

But if this was my roadway to my house (especially if shared by multiple people), I'd want the fencing moved off of it so I could maintain. Doesn't seem super complicated, but the details in the deed can be important. Best bet is to work with a real estate lawyer and survey company as your first step.

 

[alexpops]

Or ... late night snow plow accident takes out the fence. May be too late this year, but next snowfall would have it handled.

 

[bdhsfz6]

Is the right of way for a private road, leading to other properties? I would think that whoever is being affected by the narrowing of the road would be in the best position to pursue this.

I'm no lawyer, but I'd be skeptical that the entire HOA could be held liable for an issue that would occur on this one individuals property. Especially if there have been documented efforts to improve the roadway by the other owners. Further, even if the HOA is liable, that doesn't mean that all the other property owners are individually liable. So I wonder how much each individual actually has to lose? Worth consulting with a lawyer on that framework.

But if this road leads to someone's property, and then someone installed fencing that encroached on the 40 foot that is allowed for maintenance, I would think they would be in their rights to move the fencing to the edge of the ROW and perform improvements as they are needed. If it was my right of way, I might have a survey performed, then send a letter to homeowner to move the fence, then have it moved myself if nothing is done, and perform maintenance as needed. That is a separate issue from trying to collect HOA dues. Different problems.

As an aside, I find it a bit curious that a judge would continually rule against written contracts - unless they are poorly done. And as has been suggested, that decision could be appealed. Now, is it worth the legal costs for the bit of money you might be able to force out? Different question.

All that said, a legal outlet is often the worst way to deal with things like this. No one wins.

There are 4 property owners affected by the restriction. One is in a wheelchair and occasionally needs the EMT's. Another has a heart condition and could need them at any time.

The property has been surveyed and the position of the ROW is clearly marked.

It's apparent that putting words in a deed does not constitute a binding contract around here. It's a very rural area and, as you suggest, the wording is poorly done. You really need to live here to understand the legal & political climate. It's a cross between Green Acres, Petticoat Junction & Mayberry.

We are probably within our rights to move the fence but no one wants a physical confrontation with this unstable person. We have no local police force and the sheriff & state police won't respond to a property dispute unless shots are fired.

 

[bdhsfz6]

Or ... late night snow plow accident takes out the fence. May be too late this year, but next snowfall would have it handled.

I do the plowing and believe me, I've considered it. There would undoubtedly be retribution and where does it stop.

 

[Rockbadchild]

Each land owner owns the portion of the ROW that passes through his property.

Has he made any threats? Get a professional survey. Get the cops involved. Hire a company to move the fence. Tell the cops that the company will be moving the fence. If landowner disagrees with the survey, he's within his rights to get his own survey. Video record any interactions with the individual.

Saying he's not going to honor the ROW and purposefully installing fencing on the ROW because he wants more property won't hold up.......If there are disagreements about where the ROW actually is, that's another story.

I would think dealing with this by survey first, letter second, cops third, pay company to move the fence fourth would keep this out of court, unless he tries to sue. Which, if you have a survey, won't go anywhere.


But if this was my roadway to my house (especially if shared by multiple people), I'd want the fencing moved off of it so I could maintain. Doesn't seem super complicated, but the details in the deed can be important. Best bet is to work with a real estate lawyer and survey company as your first step.

The road his on his land... I can't see moving someone fence when his fence his on his own property...