Tresspasing and Landright

There is nothing in your documents that explains what your individual property rights are?

Can you start by putting up a private property/no trespassing sign or is that against HOA rules?

Hi Karl:

I am assuming that your current documents do not allow fences in order to potentially not block views of the lake. My suggestion would be to ask for the issue to be added to the agenda for your next monthly board meeting. Discuss the issue of trespassing and potential infringement and destruction of property landscaping by others who are trespassing. The following is part of one of the statutes:

 720.3035Architectural control covenants; parcel owner improvements; rights and privileges.—

 (4) Each parcel owner shall be entitled to the rights and privileges set forth in the declaration of covenants or other published guidelines and standards authorized by the declaration of covenants concerning the architectural use of the parcel, and the construction of permitted structures and improvements on the parcel and such rights and privileges shall not be unreasonably infringed upon or impaired by the association or any architectural, construction improvement, or other such similar committee of the association. If the association or any architectural, construction improvement, or other such similar committee of the association should unreasonably, knowingly, and willfully infringe upon or impair the rights and privileges set forth in the declaration of covenants or other published guidelines and standards authorized by the declaration of covenants, the adversely affected parcel owner shall be entitled to recover damages caused by such infringement or impairment, including any costs and reasonable attorney’s fees incurred in preserving or restoring the rights and privileges of the parcel owner set forth in the declaration of covenants or other published guidelines and standards authorized by the declaration of covenants.

Potential options might be:

1) The board to inform all homeowners to please for both themselves and their guests to respect everyone’s property and not trespass.

2) Depending on landscaping regulations in your governing documents, you could plant hedge or something along your property line to maybe cut down on trespassing.

3) The homeowners can amend CCR’s and allow fencing … maybe allow only 4’ fences to keep area somewhat open for views, yet protect each owner’s property. This would require the number of owners to agree per your governing documents or state statutes to amend, if currently not allowed.

You might also check and see what your landscaping would allow, in regards to legal access. I have found a couple well placed rocks, boxwoods, flowerbeds, cactus, etc. can do wonders to socially engineer people away from areas.

Heck, even a couple wooden stakes and some string with a sign "stay out, tern nesting" or "do not walk, reseeding" will work for a while, while you research more permanent options.

Karl,
First check your documents as stated above to see if there is a access granted for shoreline usage. Also, who owns the riparian rights? That might offer so clue as to the shoreline.

Question for JanetB2:

Janet,
I read the section in the FL Statutes you provided in your reply. This section is going into detail regarding improvement and architectural structures, but it really doesn't say anything about the right to access other parcels other than your own without permission of the parcel owner. Or am I missing something? I'm also wondering, if the docs say no structure can be erected or any exterior changes can be executed without the approval of the BoD, does that mean they can just say "NO" to anything? I know this section also says that " ... rights and privileges shall not be unreasonably infringed upon or impaired by the association ...", but what is unreasonably? What might seem for one unreasonably, might be reasonably for the other.

I went through our docs again and I found following paragraphs. Paragraph 4 actually does say something about granting access to and from each individually owned dwelling unit, but every unit can be access through the front door without having to walk across anybodies property. Any ides how far this can be stretched? Does that include fishing on my property until 9:00pm almost every day?
Here are some sections from our Declaration of Restrictions:

4. Each party in a given building grants to all other parties, a perpetual easement for necessary access to and from each individually owned dwelling unit, specifically including underground easements for water and sewer, sidewalk easements, easements for power, telephone and any other utility sub-feed lines installed either beneath the ground floor slab, through the attic space of said building, or on or under any individually owned real property. Any expense occasioned by necessary access of authorized personnel of any utility companies serving the building will be shared equally by the parties through ASSOCIATION, as a common expense. ASSOCIATION specifically reserves the right to create, describe, declare and reserve any sidewalk or other access easements it deems necessary.

6. In the event repairs or reconstruction shall be necessary, all necessary entries on the adjacent parcel shall not be deemed a trespass so long as the repairs and reconstructions shall be done in a workmanlike manner, and consent is hereby given to enter on adjacent property to effect necessary repairs and reconstruction. All repairs shall be accomplished by either the parties or ASSOCIATION.

8. Any and all additional easements shall be supplemental to this agreement and not in derogation of any covenants herein contained.
9. Each party covenants and agrees that he will decorate the exterior of the dwelling upon his property in a color and finish similar to and consistent with the color and finish of the other parties’ dwellings. If any party shall desire to decorate the exterior in a color and finish other than that originally supplied by the builder at the time of construction of the dwelling units, then the consent in writing of the other parties, and the consent in writing of the Homeowners Association shall be obtained prior to said decoration changes being effected, and in addition, if there shall be any mortgages upon any party’s property, then the consent in writing of any and all holders of first mortgages shall also be required prior to such change in decoration being effected.
10. Normal maintenance of the building exterior of the parties’ dwellings, such as cleaning, re-coating or repainting, shall be done uniformly and at the same time for the entire exterior of the building upon agreement of the parties. The expense of such maintenance shall be borne proportionately by the parties in share proportionate to the square footage of the parties’ dwelling units, and shall be assessed by ASSOCIATION.

Cheers
Karl

Hi Karl:

Your rights and privileges in your governing documents cannot be violated. Also, to an extent some privacy and property rights can be protected by other laws. Sure the board can initially say NO to anything; however, the homeowners can if the board is not listening to them take control over certain items. If enough homeowners want to allow fencing of property lines then they can choose to follow proper procedures with proper voting and have said fencing allowed in the CCR’s by voting and amending the Declaration.

Reasonable: In essence legally is defined as “standard of care that a reasonably prudent person would observe under a given set of circumstances”. It is broad and to a certain extent vague, but it also leaves open a number of arguments. Here is where you could argue certain points such as right to privacy, right to protect property, etc.

Your Paragraph 4 appears to me to describe in essence “utility” easements. You might review the official plat for your subdivision which will show specific easements for maybe utilities or lake access. Also, speak with your city planning department regarding exact requirements for the 20’ easement and if certain gate access is OK.

Paragraph 6 specifically mentions “trespass”. Therefore, you potentially have grounds for individuals trespassing on your property. It would not have potentially been mentioned in your documents unless it could be considered trespassing for repairs:

6. In the event repairs or reconstruction shall be necessary, all necessary entries on the adjacent parcel shall not be deemed a trespass so long as the repairs and reconstructions shall be done in a workmanlike manner, and consent is hereby given to enter on adjacent property to effect necessary repairs and reconstruction. All repairs shall be accomplished by either the parties or ASSOCIATION.

I would suggest checking with your other neighbors and get a feel for how they perceive the issue. Then have the issue addressed on the next board meeting agenda, and see how they may or may not address the issue. If they are choosing not to address then you could get neighbors together to potentially amend the CCR’s on how you would like the issue properly addressed. The one thing about HOA’s is they are in essence a democracy; therefore, a properly executed following documents and statutes majority rules.