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

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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

Answers:

FreeAdvice Contributing Attorney / FreeAdvice Contributing Attorney

Answered 10 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.


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