As you know this was raised by a Board member who wanted a legal opinion on the matter. I just want to clarify for others that the GM is following through on getting answers but was not the genesis of the question.

Here is an example from the Section I - Declaration of Restrictions that created the question. This is some of the language from the DR (emphasis added):

Paragraph 10 Easements

10. A. "Declarant reserves for itself, ....... the following easements and/or rights-of-way:"

10, A., (a) includes, "For the use and maintenance of drainage courses of all kinds designated on the plat as "Drainage Easements".

10. D. "On each lot, the rights-of-way and easement areas reserved by Declarant or dedicated to public utilities purposes shall be maintained continuously by the lot owner but no structures, plantings or other material shall be placed or permitted to remain or other activities undertaken which may damage or interfere with the installation or maintenance of utilities, which may change the direction of flow of drainage channels in the easements, or which ......... or Subdivision. Improvements within such areas shall also be maintained by the respective lot owner except those for which a public authority or utility company is responsible."

So the questions as I understand them from reading this section are as follows:

10. A. (a) Is OPA only required to maintain the drainage "courses" meaning the drainage trench itself?

10. D.

• the owner is required to continuously maintain the easement. Does this include mowing, picking up leaves, branches and such?
• the owner will not permit to remain in the easement anything that would which might change the flow of the drainage channels. Is that leaves, sticks, branches that block flow?

We don't have a legal opinion as of yet but construction of the document could be read that specifying drainage courses may limit that responsibility to the drainage ditch itself (shaping, digging out due to silt build up, etc.); while specific language stating the easement will be maintained by the owner places the owner responsible for all but the "course" itself. Further the use of "or permitted to remain" indicates it is the owner's responsibility not to allow materials to affect flow in the drainage course.

So that is what has raised the issue after all these years. Is OPA only responsible for shaping and periodic reshaping of the drainage course? Is the owner responsible for everything else in maintaining the area to include clearing of branches and leaves?

A couple of other items of interest:

First, as I understand it if the culvert under your driveway fails, the cost of replacement, even if OPA does the work, is the owner's to bear. Is that part and parcel of "Improvements within such areas shall also be maintained by the respective lot owner....."?

Second, from what I can find,  "a 'drainage course' means any creek, ravine, gully, channel, hollow, swale or depression or any unofficial ditch, drain culvert or pipe through or over which surface water periodically flows in its natural course." This of course further adds to the limiting maintenance in easements to the ditch itself.

There is no doubt that OPA must shape and maintain the shape of drainage courses in OPA. In addition culverts under roads belong solely to OPA. The question is does OPA bear responsibility for general maintenace to include mowing and general clean up like raking leaves, removing branches that impede or block the flow of water, and cleaning out culverts under driveways?

I haven't research this at all, there may be other nullifying language, and we have a number of attorneys on the Forum who may weigh in. I just wanted to clarify for everyone how the question was raised and given the reading of the language, why it was asked. Don't shoot, I am just giving everyone the background.

Ted