October 13, 2021
The value of various features of subdivision development can be evaluated by whether they makes people happy or leads to acrimony. The value of property is inextricably intertwined with its use potential. Generally, where there are few disputes among the owners, this may indicate that the developer did something right in creating the community.
May 20, 2021
On May 14, 2021, Virginia Governor Ralph Northam lifted the indoor mask mandate in light of updated CDC guidance. Governor Northam also declared that the indoor capacity restrictions and distancing restrictions will ease, effective May 28, 2021. The District of Columbia and neighboring states are also lifting restrictions, effective around the Memorial Day weekend.
February 17, 2021
When landowners purchase real estate, they get the opportunity to obtain a land survey or to save a few hundred dollars by avoiding it. During the home buying process, purchasers’ financial situation is usually stretched to their utmost limit. The owner may not understand the value of paying $200-$600 for a survey plat when there is no known issue that would be addressed by the boundary survey. But checking out “known unknowns” is an important part of buying real estate. Relinquishing the opportunity to obtain a survey before purchase is often at the buyer’s peril.
A home inspection may reveal defects in the construction or maintenance of the home that could cost hundreds or thousands of dollars to remedy. The title examination process conducted by the settlement company reveals the legal description of the property and any title problems that may exist. However, there are basic questions about what the buyer actually obtains for the purchase price that can only be answered by a land survey that reflects the findings of a title search and proper field work. For example, fences, walls, shrubs and driveways may give misleading impressions of the boundaries. Such impressions may be at odds with the dimensions of the lot as shown in the subdivision plat.
A lot may be encumbered by a pipestem driveway easement serving a lot behind the property and the location of the paved portions, trees and fences around the easement may encroach into the easement or the driveway veers off the easement. Legal disputes frequently arise between the owners of pipestem lots and the properties across which their driveways run. Purchasers are often attracted to lots adjacent to HOA common areas or public parks because many people would rather see a wooded area, pond, or creek behind one’s house, instead of other people’s backyards. However, whether publicly or privately owned, park-like areas are attractive to joggers and hikers in the neighborhood who might find it easier to cut across someone’s lawn rather than exit the woods through an established walkway. Property owners frequently use fences or shrubs to define boundaries, but it may not be apparent where one can place such things without a survey that shows the locations of boundaries and easements.
Surveys are essential to evaluating how local government zoning laws or HOA protective covenants restrict the erection of fences, trees, walls, sheds and play equipment. If a lot is on a corner, it probably has two sides that the county and/or HOA would treat as a second front yard, despite the orientation of the house and driveway on the lot. Whether a yard is deemed front, side or back may makes a big difference in determining options regarding fences and other structures. For example, owners typically cannot place tall privacy fences in yards fronting a road without written permission.
The inclination of many people is to maximize the use of their lot by constructing additions, porches, decks, outdoor living areas, treehouses, storage structures, driveway expansions, and so on to make their property more useful. However, public and private land use rules (zoning laws and HOA standards) typically make it easier to put things behind the house and more difficult to clutter the front yard. A survey can show the location of the boundary lines and the existing distances between the sides of the house to the boundaries.
In working with a surveyor, its important to know how to “shop” for the kind of survey that is most useful to the lot owner. Its easy for a surveyor to take a copy of the subdivision plat and the most recent deed, stop by the house for a few measurements, and reflect the current location of the house on the lot on a new survey. This is typically the cheapest kind of survey because it reflects a minimal effort to update previous surveying work. What is more useful is a boundary survey made that reflects any easements previously recorded. When a survey states on its face that no title report was furnished, that means that there could be an easement that reflects a substantial encumbrance or limitation on the owner’s ability to use the property the way she wants, but the plat doesn’t reflect that. It’s a kind of disclaimer that the survey has limited value. Obtaining a title report and providing it to the surveyor isn’t hard, but it’s a step that usually isn’t taken unless the owner requests it. Even if the buyer doesn’t obtain a proper survey before going to the real estate closing, it’s possible to get a title report and have a survey prepared at any time.
As an attorney representing lot owners in a variety of disputes involving neighbors, co-owners, HOAs or contractors, obtaining a survey is frequently the first “next step” discussed to properly evaluate the legal dispute so that we know where we are going. The survey informs the owner what they actually own subject to defined restrictions such as easements. This means that the owner can make informed decisions when it comes to adding or removing structures and plants to the property. Many people faced with a legal dispute want some answers that do not cost thousands of dollars. Sometimes a title report and survey focus the issues in ways that make it easier to resolve or prevent legal disputes.
December 23, 2020
Kids, we are counting down the final days to Christmas 2020. Many of my readers are familiar with the 1957 Dr. Seuss book, “The Grinch Who Stole Christmas.” In honor of the Grinch and the Whos, I would like to share a few insights from a 2019 book I recently finished reading, “The Power of Bad: How the Negativity Effect Rules Us and How We Can Rule It” by John Tierney and Roy F. Baumeister. “The Power of Bad” is not a book about property matters per se. That said, I think that the principles of the negativity effect animate much of what is going on in real estate. The authors define the negativity effect as, “the universal tendency for negative events and emotions to affect us more strongly than positive ones.” There are many examples of this. If you visit a restaurant, and the experience is overall positive, but there is one discrete problem, then the customer walks away remembering the negative thing. When people read hotel reviews or other online ratings, they look to the bad reviews and tend to give more weight to descriptive negative reviews even if there are other positive ones for a business. On a larger scale, Anti-Terrorism is a good example. After one tragic, evil event the government makes all sorts of decisions, some warranted, but many unnecessary and harmful. In fact, the threat of terrorism is less of a risk than being struck by lightning. Empirical studies show that it often takes 3-4 good experiences to cancel out the effect of one bad experience on someone’s perceptions of a person, organization, or place. The negativity effect makes people susceptible to manipulation, particularly by media organizations chasing viewership through eye-catching news of the latest problems, a politician or candidate developing a voter base through fear, or merchants selling some product. Of course, there are bad things that people need to know to protect themselves against. The psychological power of bad experiences and associations distorts decision-making by warping perceptions through exaggerating a potential risk or threat.
The book does not go into the topic of real estate, but I can see how policymakers and property owners are particularly susceptible to negativity. Owners are afraid that their homes will become less useful, attractive, or valuable because of something that happens. Threats to one’s home affect people in deeply personal ways. Many fear an external threat to their enjoyment of their home, be it criminals taking over the neighborhood, increased traffic from new development, or a home-based business popping up next door. It is commonplace for people to buy homes subject to restrictive covenants that give power to HOA directors to impose fines for architectural “violations.” In effect, many paying extra each month to have someone tell them what to do with their own property. Why does this happen? The negativity effect convinces many (but not all) landowners that the threat of other people ruining the neighborhood by breaking the architectural restrictions outweighs the risk that the HOA may overstep its authority. However, the architectural violations that HOAs often find with owners’ properties rarely pose any substantial threat to the value or use of neighboring real estate.
The Power of Bad book provides an example of how workplace disciplinary systems can illustrate effects of the negativity bias. This example reminded me of the systems of fines used in many HOA communities. The food company, Frito-Lay discovered that workers in a Texas factory were writing obscene messages on potato chips before bagging them. During investigation, corporate discovered that the factory used a new “progressive discipline” system to deal with tardiness and safety violations. After a first “violation,” the worker’s file was noted and she was given a verbal warning. If there was another violation, the worker would be brought into an office to acknowledge receipt of a written violation notice. At that moment, the worker would feel like they were being forced to admit something without being given a chance to defend themselves. The employee was given another black mark in the file whether they sign the violation notice or not. If there was a third violation, the employee would be given an automatic three-day suspension without pay. The worker would return to the plant even angrier. The subsequent violation notice resulted in termination. Tierney and Baumeister saw this toxic disciplinary system as illustrating the “The floggings will continue until morale improves” management approach. Frito-Lay discovered that the managers hated the disciplinary system as well, because it eroded professional relationships and made them unpopular. Instead of making the disciplinary process more equitable by ratcheting-up punishments evenly, it caused the factory to become more arbitrary. The managers avoided handing out violations until they just could not stand a worker anymore, after which they tried to railroad that problem employee through the stages of the disciplinary system so they would be terminated. Frito-Lay ended up scrapping this progressive disciplinary system in favor of a different design. This “progressive” disciplinary system reminds me of the dysfunctional covenant enforcement and dues collection systems many homeowners or condominium associations use to implement board policies. When owners receive rule violation notices, they frequently observe that the rule is not being enforced in the community, and their property does not really break the rules, but others are. Sometimes the notice states that a hearing was held without the owners knowing that their case was even before the board. Often, the board does not even have the authority to adopt the rule quoted in the violation letter. When owners receive fines for things that do not actually violate any legal obligation they have to the HOA, they lose motivation to maintain their property to keep up the neighborhood. Vindictive and incompetently managed rule violation systems can actually diminish the natural impulses that people often have to work in their yards to keep pace with their neighbors. Some people may become more worried about violation notices than actually yardwork. Sometimes bogus violation notices, fines, and late fees are focused on owners who are particularly unpopular with the board members or managers. Once associations record liens or institute foreclosures, the owner can feel “trapped” in a situation where they have few options other than paying a large monetary demand that includes items the collector is not entitled to, lying low and hoping that a suit or lien does not come, or retaining an attorney to solve the problem. These bad experiences can actually get away with these improper things, leaving them with few outlets other than posting attacks against the board or managers on social media (the contemporary version of scribbling on potato chips). Compounding things, there are people on the internet highlighting all of the “bad” about HOAs, to enhance the public’s attention to these issues, in the hopes that HOAs will become abolished and punish the malefactors (certain directors, managers, attorneys, etc.). This can detract from more useful discussions about how owners can, through education or working with an attorney, develop strategies for solving their own problems with HOAs. Sometimes news articles or social media posts, taken in the aggregate, actually re-enforce the false belief that it is futile to resist HOA bad behavior. But this is not true. It is common for landowners to successfully avoid, prevent, solve, or escape legal difficulties involving their neighbors or community associations. This happens all the time, but the news reports and social media buzz focuses on the hopeless cases because they draw more attention. If an owner has a problem with a homeowner’s association, they should not stop their research at doomsayer articles about other communities where a problem spiraled into a disaster. Those articles may be true, but they are not going to identify solutions that someone can use in their own situation. If an owner already purchased the house in a community association, they cannot wait for their HOA to be abolished in the future, because that is not going to happen. Often, the best thing is for the owner, a board member, neighbor, attorney, or other advisor to try to help the owner to resolve the problem before it becomes a larger financial burden, cause additional property damage, further limit the use of property, or mushroom into a larger interpersonal conflict. In what I have seen, landowners who cultivate positive vibes within themselves and their relationships are the ones that have the resiliency necessary to overcome the injustices they suffer. The Whos of Whoville were thankful and undeterred in the face of the Grinch’s scheming. My favorite chapters in “The Power of Bad” are the ones that talk about how positivity can overcome negativity and the negativity bias can be mitigated. In real life, one cannot count on the Grinch to have a change of heart when you need him to. In real estate matters, quite often overcoming the negativity bias involves refocusing away from vindication and shame to identifying tools (facts, resources, people, laws, etc.) that can be harnessed to solve the problem, which sometimes requires going before a judge, but often can be done in the context of settlement. Sometimes re-framing bad HOA covenants, rules or statutes as the byproduct of the negativity effect can convince decision-makers to interpret them narrowly and decline to enforce them in a particular instance. In HOA matters, often the answer to the problem can be found in a recorded declaration or other instrument that applies to the facts but has been ignored because people commonly think of the HOA as the organization you get rather than what is or is not expressed in the rules.
Note that the photo used for the blog post is just a stock image and does not depict anything referenced in my article.
November 11, 2020
Contemporary land development policies would not work well without trees. Lot owners use trees for shade, ornamentation, and to screening. Subdivisions, especially cluster developments, often include common areas where trees or shrubs provide dense visual screening of the development. Vegetation can be more attractive and taller than fences. When a tree dies, it transforms from an asset to a liability, threatening damage to nearby structures or people. It is in a lot owner’s self-interest to remove dead trees from their own lots to avoid potential damage. In HOAs, it is common for large trees to rot on common areas. Boards sometimes lack focus or motivation to address such concerns. When common area trees die and cause damage, aggrieved parties want to hold someone responsible. HOA covenants impose general duties on the board to maintain the common areas but may not contain language that would hold the HOA responsible for personal injury or property damage caused by dead trees. In an HOA, the directors typically do not personally perform landscaping work themselves. The board or a manager will hire advisors and tree men for such things. What happens if the HOA hires an arborist to inspect trees in a forest and the consultant overlooks a tree that later causes harm? That’s the subject of a case currently pending in the Circuit Court of Fairfax County. In Cawlo v. Rose Hill Reserve HOA, et al., homeowners sued the HOA, property manager and arborist when a tree fell and hurt them a year after the arborist conducted an inspection on an adjacent conservation easement. In August 2017, the HOA contracted with arborist Adam Wingo to inspect all trees on a conservation easement to assess which ones were dying or otherwise posed a threat to others, including the Cawlo property. Mr. Wingo identified certain trees that the HOA removed. Eleven months later, Mr. Cawlo and his daughters were playing in the backyard when a 40-foot-tall tree fell on them, causing injuries. The Cawlos alleged that Mr. Wingo owed a duty to them and caused or contributed to their injuries.
Mr. Wingo’s attorney filed a demurrer to the Cawlos amended lawsuit, and the court dismissed the claims against him personally. Judge John Tran explained his rulings in an opinion letter. Judge Tran observed that under Virginia case law, a property owner does not owe a duty to others who are harmed outside his property due to a “natural condition” such as a dead tree failing down. The Court found that although the HOA hired the arborist to assess trees that might be a threat to adjoining owners, Mr. Wingo did not have a legal duty to protect the Cawlos. In this case, the arborist did nothing to make the trees more unsafe, and this particular tree was not in imminent risk of collapse during his inspection. This tree did not fall until 11 months later. Trees are living, natural things that lack legal qualities of manmade structures. If the development plan contemplated a 10-foot-tall fence instead of trees, and the fence fell on the family, the owners might have a stronger lawsuit. It doesn’t matter if the tree sprouted because nature brought a seed to that location or was planted by human design. These legal particulars enhance the value of trees for landscape design. For lot owners, many HOA covenants don’t treat trees as a “structure” requiring HOA approval for installation or removal.
The HOA was in a “contractual” relationship with the Cawlos with regard to the conservation easement, as defined by the recorded instruments. However, Mr. Wingo was not a party to that document. The family alleged that they could hold Mr. Wingo personally liable on a theory that he assumed a duty of care towards them by the nature of what he agreed to inspect for the HOA. To make a claim for negligence based on a theory of assumption of duty, the plaintiffs must show an agreement, promise or express intent to undertake a duty specific to the plaintiffs. The Court found that he never said or did anything to expressly assume a duty to the Cawlos. For those reasons, the judge entered an order dismissing the lawsuit with respect to Mr. Wingo. The opinion implies that litigation continues against the HOA.
The Supreme Court of Virginia held in Fancher v. Fagella that an adjoining owner may sue a neighbor for nuisance when encroaching trees and plants cause actual harm or pose an imminent danger of actual harm to adjoining owners. The owner of the tree or plant may be held responsible for harm and may also be required to cut back the encroaching branches or roots, assuming the encroaching vegetation constitutes a nuisance. The adjoining landowner may, at his own expense, cut away the encroaching vegetation to the property line whether or not the encroaching vegetation constitutes a nuisance or is otherwise causing harm or possible harm to the adjoining property. However, the principles of Fancher v. Fagella don’t seem to apply in a case where the tree is entirely on the adjoining land.
Tree law problems won’t decline as Northern Virginia transforms into an urban area. Many people desire secluded, natural locations within convenient distances to commercial areas. Some cities, counties and HOAs want landowners to replace trees they cut down. Trees and shrubs will continue to play a prominent role in giving people a sense of privacy while increasing density in Northern Virginia. People are drawn to seclusion for the relaxing psychological effects achieved by separation from noise, traffic and eyesores. However, a large dead tree next door forces the homeowner to live in a continual fear of harm compounded by the stress of interpersonal conflict. Under the law of Virginia and most states, it matters a great deal if it is a 40-foot dead tree or a 40-foot builders’ crane that fall on top of the family, even if the effect is similar. Communities that fail to adequately address the problem of dead or invasive trees will continue to see problems with trees causing harm. Homeowners ought to carefully consider the threat posed by large, older trees on adjoining property.
Note that the image used for this blog post does not depict anything specifically referenced in the article or cited case authority.
February 10, 2020
Landowners in disputes with neighbors usually are aware of how easements may define property rights among adjoining properties. However, easements are not the only kind of right that allows someone to do or erect something on the land of another. In property law, the “license” is a well-established property doctrine. This kind of license is different from a permit for driving, fishing or professional activity. An easement is a right to use the land of another for a specific purpose. Easements can be implied, express, or established by adverse use. Easements can be conveyed or bequeathed to another person and are often recorded in the land records. Licenses, on the other hand, are more limited property rights that normally cannot be transferred and are usually easily terminated. Everyone has experience with licenses, whether they realize it or not. For example, if I order a book from an internet retailer for home delivery, the van stops in front of my house, and the driver walks the package up to my front door. The delivery person does not enjoy an easement, or any kind of written authority to walk on my land. Their action is not considered trespassing, because the right of entry is implied by custom and from the home delivery order. Licenses are important in the context of HOAs and Condominiums. Governing documents often delegate to Boards the authority to grant licenses to assigned parking spots or use of other portions of common areas. Virginia law treats licensing authority differently from easements or HOA rulemaking. Private operation of common areas distinguishes community associations from other land planning systems. All owners need to understand under what circumstances a Board may intentionally or inadvertently grant specific lot owners exclusive rights to use certain portions of the common areas. Licenses can be confusing because of their similarities with easements. What is the difference between an easement and a license in Virginia? Slight changes in wording in a recorded instrument may make a big difference in the rights of owners and HOAs. In this blog post, I will glean points from two published case decisions.
The Supreme Court of Virginia considered the licensure of assigned HOA parking spaces in a 2000 case opinion. Reginald W. Dye and other lot owners brought suit against Sully Station II Community Association, Inc. in Fairfax County, Virginia. In Sully Station, some townhouses came with their own garages, while others did not. Originally, common area parking spaces in Cluster Common Area Section 8 were available on a first come, first serve basis. On October 1, 1997, the Board assigned two reserved spaces to each townhome that did not come with a garage. The other spaces remained for overflow or visitor parking. Now, 78 of 94 parking spaces were reserved to 39 non-garage townhouses, and the remaining 16 were left as “first-come first-served”. This displeased lot owners who purchased garage townhouses, likely at a premium.
When the garage townhouse owners challenged the new parking system, they contended that the assignments constituted “licenses” not authorized by the Declaration. The HOA contended that the new system was merely regulation of the common area, allowed by common area rulemaking authorization provisions in the Declaration. The Declaration granted every Owner an easement to the Common Area, subject to the right of the Association to license portions of the Common Area to members on a “uniform, non-preferential basis.” On appeal, the Association disputed the Circuit Court’s finding that the new parking policy violated the “non-preferential” requirements in the Declaration. The HOA argued that by authorizing rules and regulation, the HOA could assign parking as they see fit, and was not a license. The HOA pointed out that in some other states, assignment of reserved parking spaces by HOAs is considered to rulemaking, not licensing. Virginia is one of the states that holds that the declaration must do more than authorized rulemaking for the parking lot in order for the Board to have the authority to assign specific spaces.
In Sully Station, the Supreme Court of Virginia noted that a License to land is, “a right, given by some competent authority to do an act which without such authority would be illegal, a tort, or a trespass.” Additionally, a License is specific to a person and does not “run with the land” upon sale of the lot, unless deemed “irrevocable.” The Supreme Court observed that the new parking policy had to be viewed as licensing, and not rulemaking, because it created a special privilege entitling the non-garage townhouse owners to do something they could not without the “policy”, which was to exclude the other owners from their assigned parking spaces. This exercise of power by the Board was the essence of granting a License, because without it, the non-garage owners would have no right to exclude anyone. This licensing scheme violated the Declaration because it did not treat garage owners with non-garage owners uniformly on a non-preferential basis. The ruling in Sully Station is consistent with the Supreme Court of Virginia’s pattern of narrowly construing the authority granted to a HOA Board by the Declaration. Since the licensing provisions spoke directly to what the HOA was doing and forbade preferential treatment, the mention of rulemaking authority for the common areas elsewhere in the Declaration was not found to trump the licensing provisions.
Another HOA license case also came out of Fairfax. In Basham v. Maplefield HOA, the Association contended that the defendants improperly erected fences enclosing portions of the common areas. The lot owners argued that the fences ought to be permitted to remain on three alternative theories: (a) Express Easement, (b) Irrevocable License, or (c) Equitable Easement. The court found no “Express Easement.” The case turned on whether the previous decision by the HOA to allow the homeowners to extend their fences into adjoining portions of the common area resulted in an “irrevocable” license, and hence enforceable as a kind of easement.
While Licenses are ordinarily revocable by the Licensor, they can become permanent if it consists of erecting an improvement on the land and the Licensee incurs an expense in reliance upon the express License. The Circuit Court found that the lot owners’ claims for “irrevocable license” and equitable easement” could proceed, because the HOA allegedly acquiesced in the lot owners’ requests to extend the fences to their current location. Because they described facts in their pleadings that if proven would establish an Irrevocable License, the equitable easement claim was allowed to proceed as well, because Irrevocable Licenses can be vindicated as easements.
As Sully Station and Basham illustrate, the License to Land is a flexible doctrine, useful for interpreting governing documents or the implications of parties’ actions in ways to settle property rights. In every dispute, the parties ought to consider whether or not the disputed use or alleged encroachment could be deemed a “license” by the judiciary, and if so, how that could dictate the case’s outcome. Ordinarily, it take 15 years for a property owner to establish ownership of neighboring land by adverse possession or 20 years for a prescriptive easement. Owners with disputes about the exclusive use or enclosure of land by another ought to consult with qualified legal counsel to determine whether the doctrine of irrevocable license may provide another means to make the use permanent.
May 31, 2016
Lynchburg got in the news lately on account of Liberty University suing neighbors over unwanted lake. People know about Liberty University (“LU”) from the political-incorrectness of its leaders, especially Jerry Falwell, Sr. Long before Donald Trump captured the headlines with controversial statements, Mr. Falwell had a comparable relationship with the news media. Liberty brands itself as a conservative Christian University. Until recently, I had no idea how intermeshed Liberty is in Lynchburg, Virginia. For example, in March 2016, Liberty purchased a 75% interest in the River Ridge Mall for $33.5 million dollars. This mall is across the street from LU. According to ABC13 WSET, Liberty will allow the property managers to operate the mall without much regard for the political or religious viewpoints of the University. R-rated movies will be shown. Victoria’s Secret will remain open. President Falwell, Jr. explained that the University purchased the controlling interest in the mall to diversify its investment portfolio.
River Ridge Mall is not the only local off-campus real estate owned by LU. Many years ago, a Real Estate Investment Trust donated Ivy Lake to Liberty University. Ivy Lake is the centerpiece of a residential development 10 miles from the LU campus. Ivy Hill Recreation, LLC (“IHR”), a LU subsidiary holding company and the homeowners around the lake are in an intractable dispute over maintenance of the lake’s dam and the road that runs over it. In April, 2016, IHR brought a lawsuit against more than 400 landowners, seeking contribution towards necessary repairs to the dam and the roadway. This case tests the institutional values of LU regarding respect for property rights and neighborly obligations. The case also illustrates risks to landowners when the duties to maintain and repair roads and bridges in a community are not very well-defined. Most suburban properties without direct access to public right of ways have recorded HOA covenants that refer to roads as commons areas. When considering purchase of properties in a HOA, potential buyers certainly should carefully review and consider the HOA disclosure documents. As this lawsuit shows, sometimes home buyers should be equally skeptical about the absence of restrictive covenants when there are “common areas” that require maintenance.
This case captured my attention because I grew up a mile from a man-made lake in rural Virginia. While the lake and adjoining park are owned by the local government, some of our neighbors had lakefront properties. My brothers and I used to walk to the lake during the winter and sled down the side of the dam. One winter, someone built a sledding ramp near the bottom of the dam for cheap, risky thrills. In the summer, I would run up the side of the dam for an intense workout. Perhaps IHR could offer rights to use a beach area on the lake as an incentive to maintain the dam?
According to the lawsuit, the developer constructed a dam across ivy creek in order to create Lake Ivy. The lake adds scenic and recreational value to adjoining owners. The developer built a road across the dam. Some of the homes around the lake are only accessible by the road across the dam. The lakefront owners have easements to use the lake for recreational purposes. What is unusual here is that the lake, dam and road are not owned by the county or by an HOA. The developer donated the Lake to Liberty University, subject to the easements of the homeowners. Liberty faculty, students and staff rarely use the lake. A few years ago the Commonwealth of Virginia determined that per statute, the dam required extensive repairs, particularly the spillway and the road over the dam. If the spillway and road are not repaired, they must be closed to mitigate risks of failure. The repairs will cost approximately $1 million dollars. The state ordered IHR to comply with the safety requirements. Because of all of this, Liberty is no longer interested in owning the lake property. If they can’t get the owners to assume ownership of the property, they at least want them to contribute to the repairs.
This dispute is complicated by the fact that some defendant owners have lakefront acreage and don’t use the dam road, some rely upon the road over the dam (with no lakefront), and some are on the water and rely upon the dam road for access.
The neighborhoods surrounding the lake are not without any restrictive covenants. While they don’t all appear to be an HOA, most of them are subject to a declaration of agreements that restricts development to residential use, sets up an architectural committee, prohibits commercial uses, limits unsightly outbuildings, and other restrictions.
The gravamen of LU’s demands to the homeowners is not unreasonable. If the owners want to continue to enjoy access to their properties, someone needs to maintain the dam road. If the waterfront owners want to continue to enjoy the lake, someone needs to support the repairs to the spillway. Many landowners willingly signed documentation that would require them to make pro-rata contributions to the repairs. LU would prefer to have the owners form a HOA with the lake property as a common area. The lawsuit doesn’t request that the owners be forced into a formal HOA. Judges have discretion to craft solutions to easement disputes. However, they cannot decree creation of an HOA. HOAs must be set up by the developer beforehand, because rarely will owners unanimously consent to one. Enough oppose the efforts to require filing of the lawsuit. LU’s decision to file the lawsuit is more reasonable than unilaterally draining the lake and eliminating the dam without an effort to resolve the dispute. Without the lake, the owners will lose a perk. Without the roadway, their properties become useless because of lack of access.
The lawsuit suggests that the legal and practical aspects of all of this has been apparent for many years. Any potential buyer could research land records and determine that if the dam road required repairs, someone would have to pay for it. Also, the developer who built the lake apparently did it on the cheap. The lawsuit alleges that, “The work necessary to armor or harden the spillway was contemplated when the dam was originally conducted, however it apparently was not completed, and it must be done now as a condition of maintaining the dam.”
What is LU asking the Court to do for them? The lawsuit contains five claims:
Count 1: Duty to Maintain Easement (both the lake and the required repairs)
Count 2: Contribution (to IHR towards Required Repairs and other related issues)
Count 3: Right to Assess a Fee (for use of the lake, consistent with the right to makes rules & regulations)
Count 4: Negative Reciprocal Easement (lake development parcels have similar restrictions, most have express easements for recreational use of lake subject to rules and regulations, because they have easements for use, they should be bound by the rules and regulations, and also should be bound to contribute to the required repairs)
Count 5: Otherwise, owners must (1) personally make the repairs or (2) suffer the consequences of an abandoned easement.
In my opinion, IHR is overreaching somewhat in this lawsuit. I doubt that the judge would enter an order that would create a quasi-HOA relationship between the parties absent a unanimous agreement. The lawsuit burdens the owners with having to defend the case. It forces them to take a position, either participate in the maintenance and repairs or abandone their interest in the road, dam and lake. I would be very surprised if the judge would do more than deciding that the LU subsidiary is entitled to financial contribution for the minimum amount of repairs to maintain the easements.
Regardless of its outcome, this case has lessons learned for prospective property owners. Buyers should not assume that the developer will record covenants that will adequately address common area maintenance. If a developer wants to give away a property like a man-made lake that is unfinished and requires maintenance, then an institution like a University should consider the implications before accepting the gift. Hopefully these parties can resolve this dispute and avoid endless litigation and/or removal of the dam. Ivy Lake could remain a blessing, and not become a curse.
photo credit: The James River from the Old N & W Railroad Bridge via photopin (license)(does not depict creek or lake in article)
September 8, 2014
The boundary between Maryland and Virginia has been the subject of legal disputes for hundreds of years. On August 29, 2014, the Maryland Court of Special Appeals added another chapter to this “meandering” tale. The Court issued an opinion in a dispute over rights to certain waterfront property near Harper’s Ferry, West Virginia. River Riders, Inc., is a fishing, tubing and rafting tour company doing business in the “Potomac Wayside” area (pictured) along the southern bank of the upper Potomac River. Potomac Shores, Inc. claims the Potomac Wayside tract through their Washington County, Maryland, deed describing the south side of the Potomac as a boundary line. Potomac Shores asserts the parcel is in Maryland, because that geographic area was in the Potomac River before gradual accretion of the shoreline. From Potomac Shores’s perspective, that accretion is their windfall, not River Rider’s. Potomac Shores brought their title lawsuit in Washington County, Maryland. River Riders moved to dismiss on the grounds that the Potomac Wayside land is located in Loudoun County, Virginia, not Maryland.
I became interested in Maryland history during my undergraduate years in Annapolis. In 1996, I had a summer internship with the National Park Service in Sharpsburg, a small town in Washington County, Maryland. Harper’s Ferry remains one of my favorite day excursions, a beautiful spot where the Shenandoah River flows into the Potomac. This is where Maryland, West Virginia and Virginia meet. Along the Maryland side, the C&O Canal towpath offers a flat, scenic hiking and biking trail. Certainly an attractive area for entrepreneurs to base a river tourism business.
The historic Maryland-Virginia border disputes cover a spectrum of issues. Before this latest Maryland lawsuit, most disputes focused on use of oyster beds in Bay tidal areas. The passion for shellfish amid confusingly defined property rights repeatedly escalated into violence between Maryland and Virginia watermen. In 1874, Maryland and Virginia agreed to submit the boundary dispute to arbitration to resolve the matter peacefully.
The Potomac River is part of Maryland and the state boundary runs along the low-water mark on the Virginia side. What happens when this line moves? The Maryland Court of Special Appeals articulated the legal question as follows: “Does the boundary between Maryland and Virginia shift as the south bank of the Potomac alters because of time and the forces of nature? Or is the boundary fixed and immutable?” Potomac Shores argues that the boundary was set in the past and the gradual process of accretion, erosion and relection resulted in “new” land formed on the south bank of the Potomac.
Note that it has long been settled that the Potomac River is freely navigable by the citizens of the states, and that the waterfront property owners have rights to build docks and wharfs out into the river, as permitted under land use restrictions.
The conclusion reached by the Maryland Court of Special Appeals runs contrary to our modern preference towards “precision.” The Court rejected the “fixed boundary” approach requested by Potomac Shores. The Court upheld the Circuit Court decision, finding that, for the non-tidal portion of the Potomac River, the boundary shifts as time and the forces of nature gradually re-shape the low water-mark of the river’s “southerly shore.” This implies that the border between Maryland and Virginia is changing, by acts of nature, not government. This also means that those private landowners along the Maryland-Virginia border also have potentially shifting boundaries. Virginia’s Potomac waterfront landowners above Washington, D.C., may loose or gain waterfront property as the currents withdraw, add or relocate the shoreline.
The court’s decision avoids the problem of defining the water line boundaries as those that existed at a certain point of time in the past, such as a land grant or other legally significant document.
The new court opinion observes that the result of the case may be different if the accretion of the Potomac Wayside property was man-made. The opinion does not discuss waterfront landowners planting vegetation, constructing sea walls and laying rip-rap to protect their properties from natural change.
The Court analogizes state boundary lines and individual property boundary lines, quoting Justice Kennedy’s dissent in an older Virginia v. Maryland boundary case: “No court acts differently in deciding on Boundary between states, than on lines between separate tracts of land.” For example, the arbitrators in 1874 observed that, “Virginia’s prescriptive use of the river’s south bank had changed the boundary to the south bank’s low-water mark for the course of the entire river.” What is prescriptive use of real estate? Professor Minor defined it in his 1908 treatise as, “based upon the presumption of a grant, arising after long-continued, adverse, uninterrupted, notorious, exclusive enjoyment of a right in the land of another, under a claim of title.” The presumption becomes conclusive after twenty years. Was the arbitrator’s reference to the doctrine of prescriptive easements appropriate? Or is it a red herring?
The border between Maryland and Virginia is changing – is your boundary meandering as well? If you are currently experiencing a dispute with one of your neighbors concerning a property boundary defined by a river, stream, lake or other waterway, consult with a qualified attorney in order to explore your options to protect your rights.
Treatise Citation: Raleigh C. Minor, The Law of Real Property, Sect. 108 (1908).