Summary of court case regarding:

Homeowners' rights to use "Disputed Roads"

Elk Falls Property Owners' Association, et al. vs. V. & D. Dunwody, et al.
Park County case number: 2010cv65.
(The disputed roads are portions Juniper, Jensen, and Elk Creek Roads near the West Gate.)

Immediately after taking office in July, 2009, the new EFPOA Board appointed a Lower Lake Ranch Liaison Committee to establish communications and improve relations between the Board and Vera and Drayton Dunwody, owners of the neighboring Lower Lake Ranch. One Board member and two non-Board members were appointed, all of whom were thought to be fair and who had good relations with the Dunwodys. There were a number of issues that needed resolution, but clearly the most important issue was the Dunwodys' claim of ownership of the main access roads into the Elk Falls subdivision, the "disputed roads," and their contention that homeowners needed explicit permission to utilize those roads. The Committee attempted to hold three meetings with the Dunwodys but on each occasion the Dunwodys invited numerous guests from the community. Each session became a venue for attendees to vent their frustrations regarding various past events. At the last meeting it was clear the Dunwodys would not consider any perpetual solution. The Association believed that anything less than a perpetual agreement of some kind would only postpone the inevitable, perhaps sacrificing any historical rights the homeowners may currently have. Finally the EFPOA Board decided it was necessary to obtain legal advice regarding how to proceed.

Even before our new attorney had a chance to review specifics of the case, the Dunwodys elected to block Juniper Road with boulders and Elk Creek Road with a saw horse and pole barrier. Calls to the sheriff were unsuccessful in getting the blockades removed. The sheriff refused to intervene calling the blockade a civil matter. Thus our new attorney was forced, with little warning or advance knowledge, to file a complaint and a request for a temporary restraining order to get the blockade removed. A temporary restraining order was granted but the Dunwodys refused to honor it. The judge, of his own volition, issued a more specific restraining order and the Dunwodys removed the blockades.

A hearing was scheduled for March 24, 2010 on the Association's request for a preliminary injunction preserving the homeowners' right to use the disputed roads. (We were not deterred when a case was filed shortly before the hearing by three Elk Falls residents, S. and K. Shapiro and F. Wolf, against the Association alleging our covenants are spurious documents.) The judge ruled in favor of the Elk Falls Property Owners' Association on all five points of law as required to issue the preliminary injunction. These five points of law are:

The Dunwodys responded to the complaint with an answer and counterclaim stating that they owned the disputed roads outright and they included the legal description from their deed in the counterclaim. The legal description mentions a "county road" right of way in exceptions 9, 12, and 14, all of which refer to portions of Elk Creek Road. The Dunwodys failed to include the entire deed from the Elk Falls Development Company which on page one clearly excludes "existing roads and rights of way" which includes of the disputed roads. A similar exception for rights of way is also included on page 3 in the deed from Mrs. Berg to the Elk Falls Development Company.

The EFPOA has filed a response to the counterclaim and a revised complaint summarizes these facts. The case is awaiting a number of legal hurdles, including mandatory mediation, before a date can be set for a definitive trial.