Common Property

I have lived in my home for over 17 years. The lot borders on a pond. There is a gap between my survey line and the actual waterline and the `grey' area is about 635 sq. ft. Neither the original HOA nor the current HOA (we merged in 2008) has ever maintained the grey area. The sum total of their maintenance consisted of pond maintenance contractor who maintains water quality and kills algae, etc.

In early 1997 I built a walkway in part of that area for personal safety since I and a neighbor on separate occasions slipped and fell to the ponds edge. I did not contact the original HOA since it was my belief that the land was mine. In 2007, I did submit a request to place rip rap along the shore line since there was erosion due to muskrat dens and wave action. I did get approval, with no mention of their claim on the `grey' area.

The plot plan that establishes the boundary of the pond has a note:
Waterline of existing pond generally along lot lines except as shown.

All references in the original covenants to the common property refers to the pond. (A pond is a body water)

Also I am currently seeking a petition and have been since March for a special meeting. The Board has been less than cooperative and in some ways quite hostile. I was the President of the Board until I resigned over some proposed projects.

I have now been sent a violation letter for common area encroachment for my walkway with a directive to remove the walkway.

Could use some independent advice.

Thank you,
Tom Morris

How far from the water's edge is your property survey line?

My take is that the survey line may be the legal edge of your property, and that even if your property was intended to be to the edge of the water-line, such a curved line would likely not be specified on the plot for the sake of simplicity. A narrow band as such that could reasonably be interpreted as having been intended to be part of the adjacent unit.

I have a similar situation with straight survey lines along a curved edge. I border a cul-de-sac. It's curved, my lot lines are straight. I have no reasonable expectation that the wedges & trapezoids between my legal boundary and the edge of the pavement are anything other than mine. The cul-de-sac is a private HOA-owned road, btw, so not unlike a pond.

My personal, non-legal opinion.

Simply ask the HOA why it wants you to remove the walkway? Maybe they have a different survey than you. The key is to keep talking and figure this out.

thank you, but the pond was built in 1955 by the farmer who owned the land. it was not engineered.

And what knowledge do the you possess that the rest of us are unable to see?

the farmer may have dug the pond, but, if the subdivision was built after 1977, the ammended clean water act REQUIRED storm water utilities ~ perhaps the existing pond was acceptable or was modified to comply ??!!

in any event - stop building things on property you do not own

I'm not buying it without further info.

If the pond is round and the documents explicitly state that the pond (not the adjacent land or anything outside of the water) is common property, and the border of the pond is plotted with straight lines between markers, I'll argue that the intended ownership per the documents is that the pond is common and the adjacent property belongs to the unit.

Ok, suppose you were laying out a subdivision with an HOA and you wanted to include ONLY the normal surface area of the pond as common area and the adjacent land as owned by the units. Let's assume the pond is potato-shaped with no straight sides.

How would you lay out they physical markers that identify the boundaries of the adjacent units? Straight lines between markers, curved shoreline of the pond. How do you do that to the stated intent above?