Easement Problem? (Decatur: sale, real estate, homeowners association)

[globalnomad]

Can anyone explain how easements work in GA?

Apparently, the original plans for our subdivision showed a 20-foot easement to a common area (a smallish, quite uninteresting, uneven area with erosion problems, about the size of a large backyard, surrounded by multiple houses on our block, belonging to the Homeowners Association).

However, the developers changed the plans and built one final house in the subdivision (our place).

The final subdivision plans in possession of the Homeowners Association (HOA) show no such easement. Furthermore, we were not informed of any easement when we purchased our house.

Yesterday, a couple of residents stopped by to say they wanted to have our lot surveyed because they planned to have the HOA put a public access path through our back yard to this common area. They indicated they could take our driveway if we didn't agree to a public path along our property line. They claimed that the easement superceded our existing title. Perhaps they have older subdivision drawings?

We politely stated that we were strongly opposed to allowing any public access to any portion of our property for intolerable security reasons as well as because of the negative impact on property value.

Our feeling is that the addition of another house to the subdivision plans invalidated any easement that may have existed on previous drawings.

How do we go about finding out if such an easement actually exists?

Is there a government office in Dekalb County we can contact or a site to check online?

If an easement exists, how do you get rid of it?

We plan to live in our wonderful house for many years, but we do not want to have this threat hanging over our heads (or impacting any future sale of our home).

Your thoughts would be most appreciated.

Having a miserable Memorial Day Weekend,
Global Nomad

[Iconographer]

Originally Posted by globalnomad

The final subdivision plans in possession of the Homeowners Association (HOA) show no such easement. Furthermore, we were not informed of any easement when we purchased our house.
How do we go about finding out if such an easement actually exists?

Is there a government office in Dekalb County we can contact or a site to check online?

If an easement exists, how do you get rid of it?
Global Nomad

My understanding is that if an easement is property recorded and disclosed, it stands and is as valid as title to the property itself...what interests me is that you state that the existence of this easement was not disclosed to you when you purchased the home, and apparently no reference was made to it in your closing documents.
If that is true. I would think that the burden of proof of its' existence is certainly not on you...I wouldn't put up with any bullying from the neighbors; let them prove its' existence if they want to try. But it certainly sounds like you have a case.

[kagmypts]

In order for you to find out if your lot has an easement on it, you will need to locate the final plat recorded with Dekalb County. If there is no easement on it, then the HOA cannot do anything about it. On the flip side if your lot has an easement on it, there is really nothing you can do to have it removed. Just as FYI, plats are often revised as neighborhoods are being built - it is quite possible that the an earlier version of the neighborhood plat reflected a common area (with an easement) while the final version reflects the builder's intention to put a house on your lot (no easement). Anyway, if you want to go about locating the official plat on record, you will need to find out where exactly the plat is recorded (some office located in downtown Decatur will have it). You will probably have to go in person to get a copy of the final plat. Here is a link to get you started:

DeKalb County Planning & Development

I am not sure the exact office you want to will need to go to, but I would start with the zoning, plans review and permits, and neighborhood plat review links (located on the left of the page I linked). Hopefully, in one call, you will know with whom you need to speak. Good luck!

[globalnomad]

Thank you both for your very helpful ideas and for the links to locate easement information!

A question for real estate experts among us: How are prospective home buyers supposed to know if there's any kind of easement on the property they wish to buy?

[spearhead3]

Why can't you talk to the builder ?

[ffej]

Originally Posted by globalnomad

Thank you both for your very helpful ideas and for the links to locate easement information!

A question for real estate experts among us: How are prospective home buyers supposed to know if there's any kind of easement on the property they wish to buy?

Your title insurance policy should list all easements on your property. If the easement does exist but is not listed as an exception on your policy, then it is time to contact a real estate attorney. BTW, just because an easement is or is not shown on a plat map doesn't mean it does or does not exist. It could've been granted or quitclaimed/abandoned/etc. later by separate instrument.

Good luck!

[George Chong]

Originally Posted by globalnomad

Thank you both for your very helpful ideas and for the links to locate easement information!

A question for real estate experts among us: How are prospective home buyers supposed to know if there's any kind of easement on the property they wish to buy?

I always suggest that a Buyer conduct a survey on the property. It's always good to know what you are purchasing. Any easements should show up in the survey if the survey company does a good job.

Your title insurance should protect you from any boundary disputes. I always suggest the purchase of owner's title insurance too. It's a one time fee and it may save you thousands of dollars in the long run.

[kaday]

An easement came up on our survey before we purchased our home. We decided to got through with the purchase anyway as it would have minimal impact requiring us to remove a fence and then replace it after potential work was done. It should have shown up during your survey and been brought to your attention.

[JPD]

Originally Posted by globalnomad

They indicated they could take our driveway if we didn't agree to a public path along our property line. Global Nomad

I would have laughed in their faces. What kind of threat is that? What use is your driveway to them?

HOAs make nice lawns, but HORRIBLE neighbors.

[globalnomad]

Originally Posted by spearhead3

Why can't you talk to the builder ?

Good idea. We are not the original owners, but per your suggestion we have contacted the builder to see if they might have any information about an easement.