[WSBARP] Co-tenancy Road and Encroachment

[Paul Neumiller]

Listmates, your thoughts and views please:

 

Lots and road (sixty foot wide dirt/gravel road named Tract B) were
created by a recorded survey in 1976.  In 1984, the developer (who did not
sell all of the lots) filed CC&Rs that presumably controlled Tract B and
formed an HOA.  In 1986, the Assn, realizing that Tract B only befitted 4
lot owners,  transferred Tract B to the 4 lot owners for use as ingress
and egress.  The transfer document to the 4 owners doesn’t give the names
of the four lot owners but rather just says “to the owners of Lots…”.  I
represent the owner at the end of Tract B who owns a ¼ undivided
co-tenant’s interest in Tract B.

 

1.       Three of the lot owners have short platted their lots so there
are now 13 owners.  We have learned that for many of the transfers of the
13 lots, there was no mention of the undivided interest in Tract B.  So,
is it possible that some of the lot owners do not own an undivided
interest in Tract B because the interest was not transferred to them?  Do
I care?  A local senior title officer tells me that, by virtue of Tract B
showing up on a recorded survey, the owners of the 13 lots now have a
private easement across Tract B.

2.       Ok, Tract B is 60 feet wide but the physical road is only about
15 feet wide, clearly not enough for two cars to pass.  Trouble for a fire
truck to turn around.  My client’s RV scrapes the bushes on both sides.
Neighbors along the driveway have planted fruit trees, hedges, and lawns
that encroached into the driveway.  My client, who has all of the proper
equipment, wants to widen the road to at least thirty feet wide so the
road will be 20 feet wide with 5 foot shoulders.  To do so, he will need
to tear out the neighbors’ hedges, lawns, etc.  The closest neighbor is a
screaming, swearing, chest-poking, anger-management issues huge guy.
There have been threats from the neighbor and my client is starting to
create a paper trail at the local Sheriff’s office.  One of the problems
is that kids play on the road and come darting out of the hedges into
passing cars.  My client has tried the friendly letter approach and the
plate of cookies approach.  I have suggested a neighborhood-wide meeting
with pie and coffee to explain the nature of the ownership and use of
Tract B to the neighbors.  If that fails, then what action do I need to
take?  Seek a declaratory judgment granting my client the power, as a
co-tenant, to improve the road so it will adequately serve the purpose for
which it was created?  Can the spitting swearing neighbor successfully
argue “partial” ouster for the area of Tract B that he has moved into.
The neighbor initially verbally agreed to a 20 foot wide road (with other
neighbors as witnesses) but now he is fighting any scraping of the road
any wider than 18 feet.  It is anticipated that the road simply will get
narrower and narrower as everyone’s lawn continues to creep into the road.

3.       Just to clarify, I understand and sympathize with the neighbor.
He purchased his lot with the lawn and hedges already in place and did not
know that the lawn and hedges were encroaching onto Tract B.  He sees my
client as a big trouble maker who owns the big house and big lot at the
end of the road.  However, his ignorance does not mean that he now has the
right to exclude a co-tenant from a portion of Tract B.  

 

Thoughts?

 

 

 

 

 

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