Legal Question in Real Estate Law in California
Access across HOA common area
Several months ago my HOA approved a barn on the lower part of my property. I am unable to access this part of my property from the upper portion as it is too steep. After receiving approval from the ACC for the barn I met with the President of the HOA gave him a copy of the Davis-Sterling 1361.5 states �an association may not deny an owner or occupant physical access to his or her separate interest, either by restricting access through the common areas to the owner�s separate interest, or by restricting access solely to the owner�s separate interest.� The President was also on the ACC told me to go ahead with a gravel access road across common area. I installed the road to the dismay of some other homeowners. The board approved the road and later back tracked saying they didn't vote on the road. I made a formal request for access (non-exclusive) in executive session, and explained I had a prescriptive easement (19 years of access) no response. I was not on the agenda at the following board meeting in which they ''revoked'' the barn approval and denied access.
2 Answers from Attorneys
Re: Access across HOA common area
I don't have the common interest development experience to comment on the specific issues here, but your facts caught my attention in one respect; namely, your apparent reliance upon the upper-to-lower access being "too steep." I'd caution you that "too steep" may be subject to different interpretations and rulings.
For example, landowners sometimes have sought to obtain an access easement to their property on the theory that the access they already have over a public road or existing easement is too steep. The courts have ruled with language like the following, which is a quote from a Court of Appeal decision: "The test is one of strict necessity and the fact that another way is too steep, too narrow or other or like difficulties exist does not alter the rule unless such difficulties cannot be overcome and it appears that the claimant of an easement by necessity has, in fact, no other way." Zunino v. Gabriel (1960) 182 Cal.App.2d 613.
So, my suggestion here would be to seek an engineering solution to the "too steep" front-to-back problem by grading, installing a funicular, or something of this sort. It would probably enhance the value of your property as a whole and maybe reduce or eliminate barriers to your use of the downhill portions. You could then get your barn re-approved.
HOA-law experts should chime in here; there may be rights violations or other issues where you can be helped more directly through their specialized knowledge. However, the foregoing is offered in the hope that it might be useful.
Re: Access across HOA common area
I can see the HOA approving the barn because it is your separate interest, but the road would require association approval because I am assuming like many CID's that the common area's are owned by the residents collectively as tenants in common, unless the Declaration states otherwise. Sounds like the Pres over stepped his bounds and possibly breached a duty owed to both you and the community.
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