Can a Condominium Owner Define a "yard"?

An owner of one half (one apartment unit) of our association's 8 duplex buildings (16 apartment units) has defined for himself a "yard" approximately 11 feet deep across the rear of his unit by fencing off the area into two sections. One end he uses for a garden and the other for a combination storage area and "dog run". The fenced areas in question have existed for over 3 years and have been largely ignored by the board of management.
Currently the garden area has remained untended for over a year and has been taken over by weeds. Due to the fences the hired Common Area gardeners do not tend either of these areas. (The second he has floored with grass carpet over the dirt, formerly grass.)
I am now a member of the board and would like to see these unsightly "yard" areas restored to the Common Area and maintained once again by the gardening staff. The unit owner has recently been notified by the board that he is encroaching into the Common Area without having first obtained permission from the board and that he must remove the fences and restore the areas to be maintained by the contracted gardeners. However he contends that the plat map for the tract on which the 16 units sit define the Common Area in front of the units as the first 20 feet of depth from the road. Beyond that the next 75 feet is pictured as the depth of the units, then the area beyond that to the rear boundary of the tract is also designated Common Area. Because the apartment units are less than 65 feet deep, he is contending that the additional space up to the 95 foot setback (20 + 75) is his "yard", not Common Area.
The board is intending to seek legal advice for a precedent or at least an informed opinion. I would like to learn if anyone on this forum has already confronted a similar issue and how it was handled. The condominium in question is in Arizona.

Thomas,

I am also in Arizona. I am not an attorney but I am unaware of any Arizona case law on this subject in since the courts began posting their opinions online about 15 years ago.

The "unit" purchased by the offending owner is most likely defined in your declaration. Condo units are typically defined as being the interior space created by the walls. It sounds like in this case there may be a conflict between the plat and the declaration or it just may be a misunderstanding. Essentially, he is trying to use the association's plat to prove that he owns a particular piece of real estate inside the association property. I would ask him to provide a surveyor's plat (at his expense) showing the boundaries of the property he claims to own. Such a survey normally costs about $500 to $1,000 but he is unlikely to be satisfied with the results. Since he is the one making the claim of ownership let him be the one to prove his claim.

One issue to look at is that if the unit owner claims possession for ten years or longer, he can acquire title to this patch of ground under the adverse possession statutes.

Usually the owner of a condo in your association would have an undivided one-sixteenth interest in the common areas. An undivided interest means that he owns a portion of all the common areas but does not own any part exclusively.

If I were on your board, I would suggest giving the offending owner 30 days to either prove his ownership or to remove the stuff from the yard. Thirty days later if the stuff is still there have your maintenance people remove it. If he thinks that is unreasonable, let him be the one to hire an attorney and seek an injunction.

Dear TimB4,

Thanks for the quick response. Let me attempt to answer your questions in an orderly fashion. I'm new to this editor, so I'm not even sure how to divide lines to allow for blank space. I had done that in my initial post just by using carriage returns, but in my posted message these had all been removed. I'm now trying a shift + carriage return to try to obtain a more comfortable format. We'll see at the end, I guess.

1. I did not file any complaint prior to being on the board. The offending "yard" is that of my roofmate in a duplex unit. He has lived here probably a year longer than I and had created his "yard" prior to my arrival 3 1/2 years ago. At that time his wife was a board member making the situation rather awkward. I also did not understand exactly what a condominium's typical limits were. Our CC&Rs and Bylaws are rather weak and non-specific on many issues.

2. The problem is both that the areas are fenced (thus usurping a portion of the area held in common) and that each year the area becomes more cluttered and less cared for.

3. There has never been complaint in writing to the Board prior to my joining the board a year and a half ago though one owner in particular has complained verbally at an Annual Meeting. He was then alleging that there were other considerations more pressing for him, so he was willing to not pursue the fence issue at the time. The only written complaint has been mine in the current year.

4. There is a huge fear factor on the Board due to the offending owner's harsh personality. The others feel as I do, but not being close to the "yard", they would much sooner not deal with the issue. Even the account representative from our hired management service keeps warning us that "they'll sue" if you try to make them remove their "yard".

5. Yes, I have a plat map (came with the deed) and indeed the setbacks are as I mentioned. The offending owner has even alleged that he has gotten verbal OK from the over-arching HOA for the community to define a "yard" based on that plat map. However when I asked same group to verify that, they have stated that since this is a condominium and they are representatives of owners of single-family dwellings, they have no authority in the issue.

6. No other unit owner in my association has fenced any portion of the area around their unit. I have seen throughout my community only one other case of a fence associated with a condominium and that was to make a dog run of about 3 feet wide along the side of a unit (in a different association).

7. The account representative from our management service has scanned the records for many years back and finds no approval for the fences.

8. That the owner might be correct is exactly why I am asking this forum, and why we will be seeking legal advice. If the consensus is that the condominiums can technically define and fence "yards" we must make that explicit in our Bylaws and define the owner's obligation to then maintain the areas independently of the association's gardeners.

9. The Board is diligently working to thoroughly inform ourselves of all relevant CC&Rs and Bylaws and rewriting sections to be much more explicit in several areas. Prior to my election to the Board it had been functioning very minimally in any regard. We are now beginning to see that we have much to do and are getting a good start.

Thanks again for your thoughtful reply. (I sincerely hope this doesn't get squeezed into a single tightly-packed paragraph when I click Submit!)

Matthew,

Yes, the plat dimensions discrepancy is a surprise to me too, but I presume the builder merely had the option to build the units with a depth of 75 feet and did not. Our declaration unfortunately des not define Common Area any further than to say the Common Area is all land not deeded with the unit. That seems explicit enough to me since there is no landed explicitly deeded with any unit. However the plat map allows for doubt and the unit owner in question definitely seeks loop-holes to bypass condo rules.

Matthew,

I will go to the assessors office today to see if the plat map for the development (all condos in this tract) is the most specific one available.

Also, I agree completely with you that the change of the encroaching owner will attempt to sue the Condo Assoc. as he is chronically short of funds according to his own admission. I think our other board members are unreasonably intimidated by him and his wife. That's just another thing I have to work to overcome. Our chairman has agreed this morning to contact for an appointment the attorney to whom we have been referred. Thanks again for the insightful encouragement.

Matthew,

I just returned from the Assessor's Office (Maricopa County). The helpful clerk says the plat map online is the only thing available from her office. The one I got with my deed, different primarily in that it shows Common Area front and back without dimensions, is on file at the Recorder's Office (and online too). I looked at my plat map (and my roof-mate's) online at the Assessor's Office to discover the 50 foot wide x 75 feet deep footprint is identical for all 16 units of our association. However the 8 duplex buildings actually differ in size. I took some rudimentary measurements and find they vary in size from my (and my roof-mate's) small apartments (about 50 feet deep) to one of the larger at around 61 feet deep). All 8 buildings are approximately 100 feet in width, 50 feet per apartment.

The following in caps is verbatim from the Warranty Deed description of my unit from the Recorder's office (less the location detail replaced by x's and n's).

LOT xxx, OF xxxxx UNIT xxxxxxxxx, ACCORDING TO THE PLAT OF RECORD IN THE OFFICE OF THE COUNTY RECORDER OF MARICOPA COUNTY, ARIZONA, RECORDED IN BOOK nnnn OF MAPS, PAGE nnn;

TOGETHER WITH AN UNDIVIDED (1/16) INTEREST IN AND TO THE COMMON AREA OF TRACT xx AS DESIGNATED ON SAID PLAT.

The dear lady at the Assessor's office suggests I need to pay a surveyor to interpret the above description. I think rather that the Board will need the advice of an attorney or we will just be getting another layman's opinion. The above seems clear to me that we each have a 1/16 UNDIVIDED interest in all land in our tract. I see nothing that conveys specific parcels of land to units. Apparently the builder was given the flexibility to build the apartments to his specification within the 50 foot x 75 foot building footprints, right?

Nothing, according to the documents either at the Assessor's or the Recorder's Offices, shows "the exact dimensions of any property owned exclusively" by anyone.

Matthew,

Good news! Or bad, maybe? Independently my wife did find the tax assessor's online records explicitly defining our deeded square footage (3750 sq.ft. or 50 x 75) which is the same for each unit - AND our "Livable Square Footage" which differs for each apartment!

So, to me, it now appears that each owner does have land deeded: the difference between the plat map's 3750 sq. ft. and the Livable Square Footage. It may now behoove the Board not only to get legal advice, but to prepare to define carefully what a yard is and how it must be enclosed and maintained should an owner choose to define her or his "yard" from their remaining property. Is this unprecedented in condominium living?

Thanks too for the lesson on surveyors; I concede ignorance of the topic and should not have spoken. :-)