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Subdivision Lots Subject to Easement Rights

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Q: What homeowners’ association activity is allowed within “access easements” and “lake maintenance easements?” We own the title to our lots but these easements against our property are set forth in our documents. Does this give the association or other owners the right to come on our property? (J.S., via e-mail)

A: The answer to your question depends on several things, including the language contained within the subdivision plat’s dedication language, the language in your declaration of covenants, and what easement  across your property may  held by third parties, such as utility service providers.

The basic rule is that a third party (your neighbors, your association, or a utility company) can use your property for the purposes intended by the easements imposed against the property. For example, many plats impose Lake Maintenance Easements (often referred to as LMEs). The purpose of the LME is for maintenance of a lake and it is usually the association which is the beneficiary of that easement. So, for example, the LME would give the association the right to come on to your property to maintain the lake, but would not give your neighbor the right to fish in your back yard. Work by the association within these easement areas, consistent with the dedication language and the purpose and authority detailed in the governing documents, is generally permissible at reasonable times and in a reasonable manner, and no prior permission is needed to enter your property.

On the other hand, if a plat dedicates an Access Easement (often referred to as “AEs”) to all lot owners around the bank of a lake, this would likely mean that your neighbor would have the right to enter upon that portion of your lot for enjoyment of the lake. Therefore, a careful reading of the plats and the homeowners’ association’s governing documents is needed to determine what easement rights others have across your land. A title search is usually needed to ascertain easements to third parties, such as utility companies.

This is also an important issue for associations to understand and address as concisely as possible in their governing documents. For example, an easement imposed on a lot may be described in the declaration of covenants as part of the common areas, but not necessarily an area the association should be maintaining, such as mowing the grass on a LME. Detailed document provisions regarding these issues can avoid disputes and uncertainty.

Q: My condominium association has historically had problems with certain owners not paying their assessments on time. In an effort to avoid collection problems in the future, the association is considering requiring that assessments to be paid on a one-time, annual basis, rather than paid monthly, as is our practice now. Can the association require assessments to be paid annually? (R.B., via e-mail)

A:  No. Section 718.112(2)(g) of the Florida Condominium Act states that assessments may not be made against the unit less frequently than quarterly. Therefore, a condominium association can require assessments be paid on either a monthly or quarterly basis, but cannot require assessments be paid on an annual basis.

However, if a unit owner is delinquent in the payment of assessments and the association has recorded a claim of lien against the unit, the statute provides that the outstanding assessments for the remainder of the budget year may be accelerated. Again, this is only in the context of a delinquent owner where the association has recorded a claim of lien.

Otherwise, for a condominium association assessments may not be collected less frequently than on a quarterly basis.

There is no similar limitation in Chapter 720, Florida States, the Florida Homeowners’ Association Act. As such, it is not uncommon for homeowners’ associations to require that their assessments be paid on an annual basis.

Joe Adams is an attorney with Becker & Poliakoff, P.A., Fort Myers. Send questions to Joe Adams by e-mail to jadams@beckerlawyers.com. Past editions may be viewed at floridacondohoalawblog.com.

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