Can an easement contract be declared void/illegal if it prevents others from exercising their private property rights?

UPDATED: Aug 25, 2011

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Can an easement contract be declared void/illegal if it prevents others from exercising their private property rights?

I live in a private subdivision wherein everything including roads are owned in common by the owners. One owner, Mr. Y, granted an easement for a road to Mr. X who lives in another subdivision bordering Y’s property. Since the roads in his own subdivision are rotten, Mr. X uses our good roads to get to the easement and then to his property. If we elect to have a gated community couldn’t we petition to have the easement and contract declared void or illegal since it would be an uncontrollable access point (a breach of security) depriving the owners of the security and peace expected.

Asked on August 25, 2011 Colorado


FreeAdvice Contributing Attorney / FreeAdvice Contributing Attorney

Answered 11 years ago | Contributor

You need to carefully read any and all recorded "covenants, conditions and restrictions" as to your subdivison upon all properties within in that it sets forth the protocol for controlling the properties that are subject to the document through a board of directors and a homeowner's association which could very well include the power and authority to grant easements.

You could very well be correct that the one property owner who granted an easement over commonly owned property of others including you in the subdivision may not even had the authority to do so and the result is that the given easement may be "void".

Other owners in the subdivision who own in common the roads did not sign this easement creating a burden on their properties. The homeowner's association and the board of directors should immediately consult with a real estate attorney experienced in easements to see whether or not a legal action against the one property owner who gave the easement and the other person who received it is a viable option where the transfer could be decalared "void" in a declaratory relief action.

Good luck.

IMPORTANT NOTICE: The Answer(s) provided above are for general information only. The attorney providing the answer was not serving as the attorney for the person submitting the question or in any attorney-client relationship with such person. Laws may vary from state to state, and sometimes change. Tiny variations in the facts, or a fact not set forth in a question, often can change a legal outcome or an attorney's conclusion. Although has verified the attorney was admitted to practice law in at least one jurisdiction, he or she may not be authorized to practice law in the jurisdiction referred to in the question, nor is he or she necessarily experienced in the area of the law involved. Unlike the information in the Answer(s) above, upon which you should NOT rely, for personal advice you can rely upon we suggest you retain an attorney to represent you.

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