Can HOA legally block an easement?

[MABOAT]

What is the name of your state (only U.S. law)? NC

I have an easement for a 5 bedroom septic field but only a 3 bedroom system was installed at construction. The HOA, according to the CC&R's, has to approve all construction. The HOA has refused to give us the authorization to construct the remaining lines necessary to improve our system to a 5 bedroom. The reason they have given is that the septic fields around us may not have room to expand their fields after we modify ours. However neither of the adjacent fields have an easement for more than the size field they currently have.

What is the best process? File a law suit, just expand without approval or is there another option?What is the name of your state (only U.S. law)?

 

[justalayman]

who is the servient tenant of the easement?

why are you enlarging the field?

 

[MABOAT]

I'm not clear on what servient tenant means.

The builder/developer is the person that own's the deed to the common property under a company name. The company is the issuer of the easement.

The builder/developer orignially had all rights to manage the HOA solely. He assigned those rights over to the homeowner's and a Board was formed. He can not authorize anything in the CC'R's such as construction, architecture requirements, raise dues, etc.....as he used to be able to do.

Expanding so it can be sold as a 5 bedroom home with all proper permit requirements.

 

[justalayman]

the servient tenant is the owner of the actual land your easement is located. The entity with the rights to use the easement would be the dominant tenant.

that would mean the HOA is the servient tenant.

If there is a defined area that is the easement, unless the easement documents are worded such as the HOA has the right to move or alter the easement, you have rights to your easement as described.

The problem is:

The HOA, according to the CC&R's, has to approve all construction

I can't quite understand how increasing the field changes the house from a 3 bedroom to a 5 bedroom. That is usually determined by things like, well, the number of bedrooms actually in the house. Can you explain?

 

[MABOAT]

The house can only be sold as a 3 bedroom due to permits (even though it does have 5 bedrooms). The septic system usage is only good for a 3 bedroom.

In order to sell as a 5 bedroom and be used as a 5 bedroom home the septic field has to be increased and the building permit changed to reflect 5 bedrooms.

I see that you agree that (according to what I have writtten) I have a right to my easement but the question is can the HOA prevent me from the use of my easement which would involve constructing the remaining line?

 

[justalayman]

You must have odd laws. In my state, the size of the home (bedroom count) determines how large the drain field must be. If it was a 5 bedroom home, it would have to have a drain field adequate to service a 5 bedroom home.


anyway; it's difficult to give an accurate and complete answer, especially since you have a 5 bedroom home with an undersized drain field. How that ended up that way may effect whether you have a right to demand you be allowed to enlarge your field. If there is nothing else barring the action other than they simply do not want you to enlarge the field system, I suspect you could force the HOA to allow the increase in field size. It would likely take you suing. You may check the CC&R's though. There may be a requirement to arbitrate, rather or at least prior, to suing.




The other thing that comes to mind is: can you actually obtain the proper permits to enlarge the field. Generally there are limitations as to how much area is required for a field and although you state you have enough area for the larger field, what is around that area could affect whether you could legally enlarge the field. It sounds like everybody's fields are located in the same place. That could be a problem with the state. Even if it isn't, I can see it possibly being a problem for everybody in the future. What happens if somebody's field fails?

 

[nextwife]

Did you alter the home after if was constructed? How did you address the additional sewage needs when you pursued the permits allowing the alteration?

 

[MABOAT]

No, no odd laws. It was deception. I tried to keep the question simple, rather than go into all the particulars, because it did involve a law suit and at the end the guilty party's agreed to pay for and sign off on fixing it. At the end one of the home owner's wants to ensure that they have room to exand their field for just as much as we just for usage.

There is no problem with the fields, the county has assured everyone that if there is a problem they can repair. But, they still will not agree to allow us the right to fix our problem.