R.O.W. Problem

   / R.O.W. Problem #1  

bdhsfz6

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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.
 
   / R.O.W. Problem #2  
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?
 
   / R.O.W. Problem #3  
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.
 
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   / R.O.W. Problem #5  
5 feet of a right away is not worth the hassle to me. But good luck.
 
   / R.O.W. Problem #6  
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 ?
 
   / R.O.W. Problem #8  
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.
 
   / R.O.W. Problem
  • Thread Starter
#9  
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.
 
 
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