“Easements Explained” – News-Press

“Easements Explained” – News-Press

Q: The survey for my lot when I closed on my property shows a 15-foot-wide drainage easement dedicated to my homeowners’ association. Can my association use the drainage easement for another purpose besides drainage? (A.D., via e-mail)

A: Most likely not. However, 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 whether the easement across your property benefit third parties, like governmental entities and utility service providers.

The basic rule is that the party to whom an easement has been granted can use your property for the purposes intended by the easement imposed against the property. For example, many plats impose Drainage Easements (often referred to as DEs). The purpose of a DE is usually to grant access to drainage installations and infrastructure for maintenance and repair to manage water drainage and prevent flooding.

For example, a DE would typically give the association the right to come on to your property to maintain the drainage, but would not give your neighbor, as a member of the association, the right of to enter your land for ingress and egress or recreational purposes. Work by the association within an easement area is generally permissible at reasonable times and in a reasonable manner, and no prior permission is needed to enter your property.

This is also an important issue for associations to clearly address 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 is not necessarily an area the association is responsible for maintaining, such as grass mowing. Detailed document provisions regarding these issues can avoid disputes and uncertainty.

Q: My homeowners’ association documents prohibit street parking. Recently, the association installed towing signs at the entrances to the community. Does the association have the authority to tow? (T.R., via e-mail)

A: Perhaps. Section 715.07(2) of the Florida Statutes, the Florida Towing Statute provides  that the owner of real property, or any person authorized by the owner, “which person may be the designated representative of the condominium association if the real property is a condominium,” may cause any vehicle or vessel parked on such property without her or his permission to be removed by a person regularly engaged in the business of towing vehicles or vessels, without liability.

The towing statute does not specifically mention homeowners’ associations as “designated representatives” as the condominium statute does. I expect that is because in condominiums, the streets are usually “common elements,” where title is held jointly by the unit owners, whereas title to “common area” in the HOA context is usually held by the association.

There are harsh consequences under the statute for improper towing. The association could be held liable for damages that result from the towing and attorneys’ fees. The documents governing the association should give the board of directors the authority to tow. The association must adhere to the requirements of the law, including that signs of a certain size with certain wording must generally be posted.

Associations need to be careful when exercising a “self-help” remedy, such as towing. Courts generally do not favor actions involving self-help to cure violations, as opposed to seeking legal redress in the form of an injunction or other court intervention. It is therefore highly advisable for the association to confer with its attorney before implementing a towing program.

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