Condo owner being blocked from using common element by another owner.

[FleurDeLis]

In Texas-
I am a condo owner in Texas and I have a neighbor (I assume this neighbour is an owner and not a tenant) who blocks the established side walk or easement (there are no boundaries describing this as a side walk in the by-laws, but is clearly used as a side walk by necessity, for decades, due to it being built as a side walk and below the covered parking area which protects people walking to their vehicles from the rain- and used by all as a side walk on a daily basis.) I have reported the person blocking the use of the side walk, but the HOA is not enforcing the CC&R which states that cars cannot block side walks. Or, the person that is blocking the side walk is ignoring requests by the HOA to not block the side walk.

I have been ignoring the situation for years, but when it rains I am needlessly forced into the rain because access to the side walk is being denied by this person blocking the side walk.
Also, since first reporting this, the individual is more aggressively blocking the side walk, showing a deliberate action of disregard of others use of the easement/side walk.

What are my remedies? Can I file a breach of contract suit against the owner for not abiding by the CC&R's? Do I have to just disregard my rights to usage of the side walk/common property element which I am being denied use of? What can I do to restore my use of the walkway?

Thank you very much for your help.

 

[LdiJ]

In Texas-
I am a condo owner in Texas and I have a neighbor (I assume this neighbour is an owner and not a tenant) who blocks the established side walk or easement (there are no boundaries describing this as a side walk in the by-laws, but is clearly used as a side walk by necessity, for decades, due to it being built as a side walk and below the covered parking area which protects people walking to their vehicles from the rain- and used by all as a side walk on a daily basis.) I have reported the person blocking the use of the side walk, but the HOA is not enforcing the CC&R which states that cars cannot block side walks. Or, the person that is blocking the side walk is ignoring requests by the HOA to not block the side walk.

I have been ignoring the situation for years, but when it rains I am needlessly forced into the rain because access to the side walk is being denied by this person blocking the side walk.
Also, since first reporting this, the individual is more aggressively blocking the side walk, showing a deliberate action of disregard of others use of the easement/side walk.

What are my remedies? Can I file a breach of contract suit against the owner for not abiding by the CC&R's? Do I have to just disregard my rights to usage of the side walk/common property element which I am being denied use of? What can I do to restore my use of the walkway?

Thank you very much for your help.

Someone will need a much clearer idea of what is going on in order to help you. What you likely want to do is take lots of pictures of what is happening, as well as of the surrounding area, and show those to a local real estate attorney along with copies of the CC&Rs.

 

[latigo]

In Texas-
I am a condo owner in Texas and I have a neighbor (I assume this neighbour is an owner and not a tenant) who blocks the established side walk or easement (there are no boundaries describing this as a side walk in the by-laws, but is clearly used as a side walk by necessity, for decades, due to it being built as a side walk and below the covered parking area which protects people walking to their vehicles from the rain- and used by all as a side walk on a daily basis.) I have reported the person blocking the use of the side walk, but the HOA is not enforcing the CC&R which states that cars cannot block side walks. Or, the person that is blocking the side walk is ignoring requests by the HOA to not block the side walk.

I have been ignoring the situation for years, but when it rains I am needlessly forced into the rain because access to the side walk is being denied by this person blocking the side walk.
Also, since first reporting this, the individual is more aggressively blocking the side walk, showing a deliberate action of disregard of others use of the easement/side walk.

What are my remedies? Can I file a breach of contract suit against the owner for not abiding by the CC&R's? Do I have to just disregard my rights to usage of the side walk/common property element which I am being denied use of? What can I do to restore my use of the walkway?

Thank you very much for your help.

What can you do to restore you use of the sidewalk? (How much money are you willing to spend to keep your feet an noggin dry?)

First of all your suggestion of suing the neighbor for breach of contract wouldn't work as there is no contractual relationship between you and the neighbor.

(It would be like one corporate stockholder suing a stock subscriber because he hadn't paid the corporation for his subscription.)

If as you report, the rules specifically prohibit his conduct, and the walkway is readily definable as a common area, THEN the HOA ought to be seeking a court order permanently enjoining him from blocking the sidewalk. And probably by means of a declaratory judgment.

But apparently the HOA is not so inclined, right?

Is there an alternative? Perhaps.

Why perhaps? Because other states have given recognition of the right of an individual property owner to file a derivative action on behalf of the HOA when necessary to enforce a restrictive covenant.

But you would need to consult with a Texas lawyer well versed in the state's property laws. And it would be an expensive and time consuming process.

An upside is that there is authority in Texas (Texas Property Code Chapter 202) authorizing the court to assess civil damages against a recalcitrant property owner that is compelled to abide by such restrictive covenants. I found one particular instance (no case citation given) where the offending owner was assessed civil damages at the rate of $200 per each day the violation continued.

Anyway, if you are so disposed, then talk to a lawyer familiar with this stuff. It would not be a DIY undertaking! Or you could be like a Brit. Carry your umbrella.