Developers of condominium communities and HOAs often reserve access easement rights within the Declaration/Deed Restrictions for the subdivision, especially when the Developer owns yet-undeveloped neighboring property. But what happens if the Developer forgets to reserve such easement rights specifically within the Declaration or Deed Restrictions? A recent case explores this dilemma, and at least in this case, the HOA owners come out on top.


In a 2019 case, some lot owners within a subdivision, which had been advertised as a private, gated community, sued the Developer for trying to enforce an access easement he had for the main road within their subdivision. The Developer claimed he needed access to that main road in order to develop the neighboring lots behind the gated community.  The Developer also believed he could grant access to the owners of the neighboring lots through the gated community.  The Developer relied on an underlying access easement that appeared on a title search for the lots within the subdivision, but the subdivision lot owners countered that there were no such access easement rights reserved within the subdivision’s Deed Restrictions, so the Developer had no such access rights.

Court Rulings

The trial court (and the court of appeals) agreed with the subdivision lot owners that by failing to specifically reserve access easement rights in the Deed Restrictions (or Declaration or Plat), the Developer lost the ability to enforce his right to use the road through the gated community. The court also held that the Developer lost the ability to grant access rights to the neighboring lots when he failed to mention the easement rights in the subdivision’s Deed Restrictions.  In sum, Developers cannot simply rely upon “exception” language in a title policy (which picked up an underlying easement granted to the Developer at the time he purchased the land) and expect to enforce his easement rights against subsequent lot purchasers.


If a Developer claims to have easement rights related to your Association property, question them. If the Developer does not have all his legal ducks in a row, it is possible that he does not have the rights he thinks he has.  For HOAs and condominiums, it is worth the double-check.

Cook v. Nissimov, 2019 WL 3134129 (Ct. App. TX, Houston, 14th Dist.)

If you have any questions, please feel free to contact the Husch Blackwell LLP Condominium and HOA Law Team.