Homeowner has fence encroachment

I've always heard this described as "acquisition of title by adverse possession." This is probably covered by state law, but generally a person may acquire title to all or part of another person's property by openly occupying it or, as in this case, fencing it off.

If there is a state law to cover this, it will likely specify how many years this has to occur, whether the current owner assumes the previous owner's claim, and what property cannot be acquired.

Your association should consult with an attorney to ensure that it does not lose title to this slice of property.

The owner and the association are aware of the encroachment. This association has had problems in the past granting exceptions to the deed restrictions and was sued by a homeowner earlier this year for same. At an annual meeting this past evening a couple members of the board made remarks regarding the possibility of the homeowner getting title to the property by mere fact that the fence has been there a number of years. However, that sounded a little like getting ready to grant another exception. A review of the warranty deed and the legal description of what was conveyed shows only the land as platted and does not include the extra 5 feet. The property was previously quit claim deeded to the wife by the husband in a divorce and that document clearly states there was no survey done at that time. I do plan to go to the city and see if there was a permit to install the fence originally. Then I will know if it was the fence company that didn't follow the markers during installation. The new owner may have recourse against the previous owner or the fence company but the association does not have the power or authority to give away a piece of common area. I also intend to contact the attorney for the association.

That may be true, but the courts do have that power.

The fence encroachment "fix" would require one side being moved back to the legal lot line. Several members of the board have already volunteered to help do this when the new homeowner decides he is ready. The association has no intention of leaving the encroachment stand because it will only cause other problems within the association further down the line.

This association is known for its selective enforcement of its deed restrictions and community standards. However, there's a newly elected board that wants to change the direction of the community and start enforcing on a consistent basis and that starts with requiring the homeowner move his fence. It appears the homeowner is looking for someone to "blame" because this issue wasn't caught prior to his buying the house. Another member of the board and I will be checking out when the fence was originally put up and the fence company because either the previous owner or the fence company would be responsible for the correct placement of the fence.

This has been an interesting discussion.

So, if I own a piece of property that you take control of by fencing me out and then you invite your guests to use the property that you now control but do not own, I am liable if guests that I did not invite are injured on the property that you have taken from me? Seems like quite a stretch.

Don't know if I understood our attorney correctly but she stated "There is no such thing as adverse possession"

BB&

I copied this:

Adverse possession is a principle of real estate law whereby somebody who possesses the land of another for an extended period of time may be able to claim legal title to that land. The exact elements of an adverse possession claim may be different in each state.

To prove adverse possession under a typical definition, the person claiming ownership through adverse possession must show that its possession is actual, open, notorious, exclusive, hostile, under cover of claim or right, and continuous and uninterrupted for the statutory period. These terms have special legal meanings as legal "terms of art", meaning that their definition for purposes of adverse possession law may be different from a definition you would find in a standard dictionary.

Please note that real estate laws can vary significantly between jurisdictions. Adverse possession is now usually governed by statute, and the law, definitions of terms, and the applicable statute of limitations can vary significantly between jurisdictions.

I am not "playing" lawyer nor am I a lawyer.

In the case being discussed, had the HOA never said anything about the fence being on the common property and the fence owner "took care" of the property (this does play a role) then theoritically the fence owner could go after adverse possesion claiming as the the HOA never said anything then all the land upto the fence should be his.

I did see a case once where a person fenced his property in and on one side his fence was 10 feet short of the property line. He never maintained the part over the fence but his ajoining neighbor did. His neighbor was going after the propery left unintended under adverse possession. I do not know the outcome.

I know of another case (within the last 3 months) where a person bought a home/lot that backed upto a golf course. They had some backyard landscaping/remodeling done and ended up "taking" about 5 foot of the golf course. When the course found out they sent a letter saying we know it but at this time we do not wish to persue the issue. They felt the letter covered them for any future action.

All in all I think the OP's HOA might be overly concerned and all they have to do is send a letter recognizing the fence is in the wrong place and they reserve the right to take action when and if they want to. I think this protects them and neither the owner nor the HOA has to do anything more unless the HOA really needs/wants the land back. It seems to me some want to make an example of the issue and are persuing it when they do not have to.

Hope this helps.

Joanne,

I wouldn't fight this new property owner on this fencing and would focus the HOA board on moving forward, acknowledging the encroachment and possibly having it filed at the courthouse (which is common). Otherwise, you'll be stuck in the past in trying to unwind all the selective enforcement. Get a fresh start. This new owner is not and was not complicit in the fence placement.

Fence encroachments are common in HOA communities. It's a subjective call.