Academy/Utilities & Infrastructure
Utility easements
The legal right to cross your property for a pipe or wire, and who has to keep it clear.
A utility easement is the legal right for a pipe, wire, or utility company to cross private property or common ground to reach what it serves. Some states create these easements by statute; others rely on the declaration or a recorded plat. The board's job is to know where they run, keep them clear, and confirm before anyone digs.
Where the right to cross your property comes from
An easement is a legal right for someone who is not the owner, a utility company, a neighboring lot, or the association itself, to use a defined strip of property for a specific purpose, most often to run and access pipes, wires, or lines. Where that right for utility lines comes from varies by state. In Florida, easements through individual units for conduits, ducts, plumbing, and wiring already exist by operation of statute, without needing to be spelled out in the declaration.
"Easements through units for conduits, ducts, plumbing, wiring, and other facilities for the furnishing of utility services to units and the common elements."
Source: Florida Statutes 718.108, The Florida Senate
Many states instead rely entirely on the declaration or a recorded plat to create these easements. If your state is not Florida, check your declaration and any recorded plat for the utility easements running through or across your property, rather than assuming a statute creates them automatically.
Whose pipe is it, yours or the association's?
A pipe running through a unit's walls is not automatically that owner's property. Pennsylvania's Uniform Condominium Act draws the line this way: if the pipe, duct, or wire serves only one unit, it belongs to that unit as a limited common element; if it serves more than one unit, or any part of the common elements, it is common element property, no matter which walls it happens to run through.
"Any portion thereof serving only that unit is a limited common element allocated solely to that unit, and any portion thereof serving more than one unit or any portion of the common elements is a part of the common elements."
Source: 68 Pa.C.S.A. 3202, Pennsylvania General Assembly
Many states use a similar serves-one-versus-serves-more test, but the exact statutory wording and fallback rule differ. Check your own state's condominium or common-interest-ownership act, and your declaration's definitions, before telling an owner a pipe is or is not theirs.
Keep the easement clear
An easement is only useful if it stays open. A shed, a fence, a paver patio, or dense landscaping built on top of a utility easement can block the very access it exists to protect, and the association or the utility may later need it removed at the owner's expense.
"Boards must also be vigilant to ensure owners do not block or interfere with easements by installing fences, sheds, pergolas, landscaping, or other improvements."
Source: Mind the Invisible Lines: Easements Every Board Encounters, S. David Cooper, Florida Condo & HOA Law Blog
Before approving any owner request to build over ground the association or a utility has rights to cross, check for a recorded easement first. Architectural review should flag known easement locations, not just setback lines.
Before anyone digs, call 811
A utility easement does the association no good if nobody knows exactly where the lines run before a shovel goes into the ground. Federal law requires anyone digging in a state with a one-call notification system to use it first, and to follow the location markings it produces, before excavating, demolishing, tunneling, or building.
"A person who engages in demolition, excavation, tunneling, or construction... may not engage in a demolition, excavation, tunneling, or construction activity in a State that has adopted a one-call notification system without first using that system to establish the location of underground facilities."
Source: 49 U.S.C. 60114(d), United States Code
In practice, that means calling 811, the national number that routes to your state's one-call center. How many days' notice your state requires before digging varies; a few business days is common but not universal. Confirm the current requirement with your state's one-call center before scheduling any excavation, from replacing an irrigation line to installing a new light post.
Check yourself
Answer before you read the explanation, recalling it is what makes it stick.
A water line runs through the wall of Unit 12 but also feeds Units 13 and 14. What is it?
An owner wants to install a shed over a utility easement in their yard. What should the board do?
The association plans to excavate common ground to replace an aging irrigation line. What must it do first?
Sources
- 49 U.S.C. 60114(d), one-call notification before excavation, United States Code
- Florida Statutes 718.108, common elements, The Florida Senate
- 68 Pa.C.S.A. 3202, Pennsylvania Uniform Condominium Act, Pennsylvania General Assembly
- Remember to Call 811 Before You Dig, Edison Electric Institute
- Mind the Invisible Lines: Easements Every Board Encounters, S. David Cooper, Florida Condo & HOA Law Blog
Related elsewhere in the Academy
Utilities & Infrastructure
Next, see who actually owns and maintains the infrastructure these easements protect.
Whether a utility easement is created automatically by statute or must be spelled out in your declaration and recorded plat, and how many days' notice your state requires before digging, both vary by state.