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Use of Easements Limited by Intent

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Q: My homeowners’ association has maintenance access easements over certain areas across the lots adjacent to a pond. Does this mean that all homeowners’ association owners/members are allowed to walk over these access easements to access the pond? (D.P., via e-mail)

A: It depends upon the language of the grant of easement itself, which will usually be found either in the declaration of covenants or on the plats.

An easement is a legal right to use the real property of another for a specific purpose. Here, the easement that you describe is stated to be for “maintenance access.” As such, it seems that the intended purpose of this easement is to provide access only for the maintenance of the pond. Without further information, and absent another easement that applies to this area, my guess would be that a lot owner would be well within their rights to prohibit individuals who are not accessing the property for the purpose of maintenance from crossing the lot.

Most governing documents specify the different types of easements being granted and define to whom the easement holders will be. For example, in some cases, maintenance and utility easements are granted to the association, its employees, agents and hired contractors, to utility companies, to governmental and emergency services for the operation, maintenance, and repair of the property.

The general law is that easements are to be limited to their intended use and may not be “overburdened” by the holder of the easement.

Q: The president of my homeowners’ association is in the process of selling her home and will be moving out of the community. Questions have arisen concerning when she is considered off the board and how does the association select a new president. Some feel the vice president would automatically become the president of the association. How is this handled? (C.H., via e-mail)

A: Your question raises a number of issues including how vacancies are created on the board, how those vacancies are filled and the difference between seating and filling vacancies for directors and officers.

Whether the president’s sale of her home automatically creates a vacancy of the board there is no statutory requirement that board members must be owners. Therefore, unless there is a requirement in the governing documents that all board members be owners in the community, the fact that she sells her home will not in and of itself, create a vacancy on the board.

Assuming that the president no longer wishes to serve on the board and resigns, or that she is disqualified because the governing documents require property ownership to sit on the board, a majority of the remaining board members usually have the authority to fill a vacancy created on the board of directors.

This individual’s presidency is a different issue. While most governing documents require the board president to be a director, that is not universal. So again, the first question is whether the sale of the home is an automatic disqualification or if the president also needs to affirmatively resign her office.

While most documents provide that the vice president performs the duties of the president when the president is not available, the vice president does not automatically become the president if the president resigns or is disqualified from service on the board. Rather, absent an unusual provision in the governing documents, the directors would elect a new president, which could be the current vice president, but does not have to be.

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