After members take control of the board of directors of their owners association, they often want to amend their declaration and other governing documents and one of the changes they typically propose is the removal of all references to the declarant. If an association amends its governing documents after transition to member control to bring the documents into compliance with current law, clarify ambiguous provisions, remove provisions that are no longer applicable, or make other changes, it makes sense to "clean up" the documents and remove provisions that are no longer applicable, including, sometimes, references to declarant rights. However, some rights that are reserved to a declarant, such as easements, cannot be taken away from the declarant by an amendment to the declaration approved by only members of the association.
Declarants of planned communities and condominiums often reserve rights, such as the power to appoint board members, the power to approve architectural and landscaping plans, the right to market units within the development, and other development rights. These rights are often tied to the time the developer determines it will need to develop the community and will expire upon a date certain. Declarants also often reserve easements for themselves for many purposes including the installation and maintenance of utilities, construction of improvements in the community, and developing adjacent property, and these easements rarely terminate on a date certain. An easement is an interest in real property and cannot simply be taken away from the easement holder by third parties, such as other lot owners in a community. Unless the easement contains a termination provision, under most circumstances only the easement holder may properly terminate or assign the easement. Therefore, community associations must obtain the written consent of a declarant in order to effectively remove such easements from the declaration.
An easement may be terminated or assigned several ways. If the declarant is releasing an easement right as part of the transition to member control, we recommend that the comprehensive transition agreement include a written termination or assignment of easement signed by declarant and recorded in the office of the Register of Deeds. If the association intends to remove the declarant's easement through an amendment to the declaration, the declarant should execute the amendment to evidence its written consent to the termination or assignment of the easement. Assuming the developer has completed the community, the developer will probably be willing to sign a termination or assignment of easement or consent to an amendment that removes its remaining interest in any easements rights pertaining to the community. This is a relatively simple step, but it is often overlooked by associations and can create problems for associations if ignored.
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This article is not intended to give, and should not be relied upon for, legal advice in any particular circumstance or fact situation. No action should be taken in reliance upon the information contained in this article without obtaining the advice of an attorney.