Legal Question in Real Estate Law in California

Type Your Question Here...I live in an HOA which owns a road located adjacent to and bordering the HOA. This road also serves as an easement road that provides access to a Non-HOA homeowner, to his nearby landlocked property. This homeowner built a gate about 8 years ago to block access to the easement road from the adjacent neighboring Non-HOA residents. The HOA is still able to use this road, but the homeowner has always refused to remove his gate.

The homeowner will now be placing his property for sale next week and the HOA would like to know if the easement conveys to the new owner and also if the gate can be removed before or after the sale. The reason being that the HOA doesn't want the seller's Realtor to market the property as having a gate to the road.

What should the HOA do and when should they do it in order to prevent the new homeowner from continuing with the gate? The new homeowner may not be so nice and may try to prevent the HOA from being able to use this road.

Asked on 4/16/21, 11:52 am

1 Answer from Attorneys

Timothy McCormick Law Offices of Timothy McCormick

If the easement serves a landlocked parcel, and particularly if it is a documented and recorded easement, it most definitely will transfer with the property to a new owner.

As for the gate, that is not a simple question that can be answered in an internet Q&A. Usually when easement gate cases arise it is the owner of the land that is crossed by the easement (the HOA in your case) that wants a gate, and the owner of the land served by the easement objects. As long as it does not interfere with the HOA's use of the road, it is an unusual situation for the HOA to object to the gate (although they may have a right to). Bottom line: it is simply not possible to give any opinion on the respective rights without seeing the granting document(s) for the easement and knowing the actual layout of the properties.

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Answered on 4/16/21, 3:04 pm

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