That Pesky Entranceway Sign: Who Takes Care of It?
If you live in a homeowner association, you will most likely enter the community by driving past an impressive sign structure, landscaped and lit up, with a retaining wall or other masonry feature – or some combination of all of these.
You dutifully pay your homeowner dues expecting that this feature will be properly maintained by the community association and paid for with your dues and the dues of the other homeowner members.
You notice, however, that lately the entranceway feature is not being maintained and has become more of an eyesore than an attraction to the neighborhood. The lights are out and the weeds are overgrown. You are bothered that the association is not performing its maintenance duties regarding the entranceway sign and structure.
You go to the next board meeting and complain. You are immediately put in charge of finding out how much it will cost to bring that structure back to its former glory and report to the board with a plan and three competing bids. You gladly accept the challenge.
A solution that turns into a challenge
You begin your research by asking when maintenance last done and by whom. You wonder: who really owns the structure and sign? You walk to the sign and start taking pictures of the condition. As you walk around it and take pictures, the owner of the lot adjacent to the sign comes out to meet you. “Hey,” he says. “Get off of my property. If you’re from the association, I told those guys years ago to never set foot on my property again.”
You are stunned. You say, “This sign belongs to the association. It needs to be fixed up. I’m here to try to do that.”
“Like hell,” he says. “Get off of my property.”
You leave, and you call the board president. “Yes,” he says. “That guy doesn’t know what he’s talking about. He’s been saying that for years. But the association owns that sign.”
The light begins to shine, and you realize you have stepped into a pile of something or other.
How Williams and Strohm can Help
My phone rings the next day. You ask me to look into this and giveyou some guidance on how to get this facility brought back to life and how to get access to the land for repair of the sign.
I research the recorded plat for the subdivision, hoping to see that the entranceway land is a reserve parcel to be conveyed to the association for the structure and sign. Nothing.
I carefully look at the recorded subdivision Plat for some written notation of an easement to the association for the maintenance of the sign. Nothing.
I am sure that the deed restrictions and covenants will certainly contain a reserved easement to the association for the purpose of entering the irate landowner’s lot for the purpose of repair and maintenance of the sign. Nothing.
Finally, I research the ownership of the land upon which the sign is located for assurance that the lot on which the sign and structure is built is inside the subdivision and thus subject to the rules and regulations and deed restrictions of the subdivision.
Your crazy neighbor was right
To my dismay, I find that the lot is not even in the subdivision, having been sold and conveyed with the sign on it before the deed restrictions were even recorded. Upon a second look at the Plat, the lot owned by the irate landowner is not even shown on the Plat as part of the subdivision.
This is a true story that represents just one more way a developer can leave the association holding the bag, without a way to maintain the main entranceway and thereby preserve property values inside the community. This happens more than you think.
I conclude that the association has no right of entry onto this lot and therefore cannot maintain or repair the sign without committing a trespass. I so advise my client. Now what?
When faced with this situation, an association should decide if the entranceway facility is critical to the property values of the association. If not, then the board can simply walk away and leave the crumbling sign to the lot owner to dispose of as he sees fit. Rarely is that a viable option for the board.
Usually, the board will want to try to negotiate a right of entry onto the owner’s land, and may end up paying good money for that privilege. Negotiations will get sticky and can take years, especially if the lot owner has old and unresolved issues with the association or developer. Those issues will have to be discovered and addressed. In exchange for the money paid for the access easement, the board should consider asking that the owner become a member of the association, subject to the deed restrictions as well as being entitled to the use of the recreational facilities. Short of that, the board may simply want to bargain for the right to enter the lot to remove the sign, and should be willing to pay for that privilege as well. If no agreement can be had, the board may consider resort to the courts to declare a prescriptive easement for the purposes of entry and maintenance of the sign. A court action, as we know, is expensive and uncertain, but may in the end be the only way to force a resolution to this critical problem.
Whatever agreement is reached should be put into a writing which can be recorded with the county to put all on notice of the new arrangement with the irate landowner.
The costs to remedy this situation can be substantial and is another cost that could have been avoided had the developer been more thoughtful and diligent in creating his documents. Unfortunately, the association now must pay the price.
Charles T. Williams
Charles T. Williams is the founder and a principal in the firm. A native of Columbus, Ohio, and a veteran of the Vietnam war, Mr. Williams earned his law degree from Boston College Law School. He is widely recognized as one of Ohio’s foremost attorneys practicing homeowner association law and condominium law. Read Charles T. Williams's full bio.