Mediation Requirements

Started by RogerM3 • 8 replies • 1426 views

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RogerM3 (California)
Posts: 7

Posted:

The HOA president says we are encroaching on common area property.
They had a surveyor come out to determine the property lines.
They now want us to go to mediation but they will not show us the results of the survey.
We have asked them to show us the results of the survey proving we are encroaching on common area.
They will not show us this and insist that if we don't go to mediation, they will file a lawsuit.
Don't they have to prove to us that we are encroaching on common area before going to mediation?

Thanks

TimB4 (Tennessee)
Posts: 21,059

Posted:

No.

However, common sense would be to provide that information so you can avoid court.

They will have to prove it to the court.
If you go to mediation, I would suggest making it non-binding and insist that the mediator use the rule of law as many are not required to do so.

You may want to have your own survey done. This would help you prove their survey results are correct or not.

MelissaP1 (Alabama)
Posts: 13,836

Posted:

Hold your horses!!! This is an issue between "Exclusive use" and "Common property". Remember you are still part owner of that common property. Hence why it is considered common... So read up on that definition in your CC&R's.

One can have exclusive use of common area. Like in our HOA, you owned the lot and the house it sat on. However, everything outside of that was considered common. Which one had exclusive use of to a point. We basically as the HOA board could control or deny what was on that common area such as signs, decor, or some plantings (grass type). It allowed us to provide lawncare without being considered trespassing.

So get the definition of what property means in your HOa. Your board could be operating on wrong assumptions. Thus the lack of the survey... Which I doubt they got after talking to their lawyer...

Former HOA President

MatthewW4 (Arizona)
Posts: 500

Posted:

Roger,

Since the HOA president is threatening a lawsuit, ask him to have the association's attorney contact you. I seriously doubt that the president has sought any legal advice, much less arranged for filing a lawsuit. Remind the president that if he does file a lawsuit he will be required by discovery rules to produce the survey. (His refusal to show you the survey strongly suggests that the surveyor found no encroachment.)

In the meantime, check with your recorder's office to see if the surveyor recorded his findings. If he did, you can obtain a copy there as it is a public record. (I do not know what triggers the recording of a survey, so the surveyor's drawings may not be there at all.)

RogerM3 (California)
Posts: 7

Posted:

Quote:

Posted By RogerM3 on 07/11/2013 6:40 PM
The HOA president says we are encroaching on common area property.
They had a surveyor come out to determine the property lines.
They now want us to go to mediation but they will not show us the results of the survey.
We have asked them to show us the results of the survey proving we are encroaching on common area.
They will not show us this and insist that if we don't go to mediation, they will file a lawsuit.
Don't they have to prove to us that we are encroaching on common area before going to mediation?

I forgot to mention that the fence they are accusing us of causing the encroachment was put up by the developer before we owned the property.
The HOA president does not like us and has caused vandalism to our property which we have captured on surveillance videos.

Thanks

RogerM3 (California)
Posts: 7

Posted:

Quote:

Posted By RogerM3 on 07/11/2013 7:27 PM

TimB4 (Tennessee)
Posts: 21,059

Posted:

How long has the fence been there?

RogerM3 (California)
Posts: 7

Posted:

It has been there since 1991.

TimB4 (Tennessee)
Posts: 21,059

Posted:

Note: I am not an attorney and I do not work in the legal profession. For legal advice, consult with a local attorney.

Since there are personality conflicts between you and the President of the Association, I am going to alter my normal advice of taking the issue to the Board. Instead I'm going to suggest that you contact an attorney and have them look into the following:

1) Is the fence on common area (need to have a survey done)
2) If the fence is on common area, explore a doctrine of laches defense
3) Have attorney respond to the Board.

Yes it may cost you some money but the if the President can't separate personal issues from professional issues, the Board might not listen to reason and you will need the legal advice.

Since you are in CA, take a look at the following:

Pacific Hills Homeowners Assn. v. Prun a 2008 case.

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