Oops, HOA maintains private land for 30 years.

The most relevant law would be adverse possession.

This varies from state to state. In AZ, if you openly occupy or use someone else's property for ten or more years you can file a court action to acquire title.

In your situation the HOA has openly occupied the property between the wall and the sidewalk for 30 years. Apparently none of the actual owners asserted any sort of ownership over this portion of their lots. You may have an open-and-shut case for title but I am not sure how that will change anything if none of the owners maintained the lots in the past and the HOA supplied all the labor and material to landscape the property in dispute.

> If I was on the board I would suggest the HOA obtain permission from the owner to continue to maintain the shrubs, etc

Thing is, according to OP, the owner now wants to do something different.

In order to win an adverse possession claim, (my understanding as a non-lawyer) is that the possession needs to be open, notorious, and adverse. Seems to me that the owner has been using the land himself (as a member of the HOA) and now wishes to use it himself (as an owner). Is that adverse enough?

You might have to break new legal ground here to pursue an adverse possession suit. Sounds like a recipe for high legal fees and a couple of enriched lawyers.

I recommend (1) verifying by survey that a real mistake was made and (2) acknowledging the mistake and letting the owner do what is his right.

I do not see any new legal ground to break. Assuming that the property between the wall and the sidewalk really did belong to individual owners, the owners sat on their hands for 30 years while someone else (the HOA) planted greenscape and maintained their land for them. That's as open and notorious as it gets.

It will be a financial and social bloodbath benefiting only the lawyers. Even though the HOA may be lawfully entitled to take the property I would proceed with caution and avoid doing anything that will cause ill will with members and/or bankrupt the association.

First step should be to verify who owns the property in question. My home sits on a city street bordered by a rolled curb and a sidewalk. So where is the property line for my property? At the edge of the street? The edge of the curb? Or the edge of the sidewalk? As near as I can tell, it is none of the above. The property line is about two feet away from the sidewalk. Part of what I think is my front yard actually belongs to the city. If you think it is worth getting title to the property, your first step should be to hire a surveyor to tell you just where the property lines really are.

The difference between Adverse Possession and an Equitable Easement is that the former involves a claim of ownership with the intent to displace the titleholder's ownership claim and the latter is the right to use/enter in a particular manner regardless of who owns the title.

An Easement does not need to be recorded to be valid. The same "open and notorious" criteria apply to non-titled easements.

So the HOA has a claim to continue maintaining the property under Easement law. This claim is not exclusive because it is a right to use and does not displace the titled owner. What this means is that the owner cannot stop the HOA from doing what it has been doing with the property for the past 30 years.

Nor can the HOA stop the owner from making changes unless ... something in your architectural guidelines (or in your other docs) prevent the homeowner from doing what she proposes to do.

The best suggestion I can offer is for the HOA to have a sit down with the owner. These legal claims can get ugly and very expensive. You are better off trying to work something out.

You can mutually agree to:
1. Establish rules for that particular area so that the current and any future owner are limited in the changes that can be made;
2. Allow the HOA to continue maintaining the area at the HOA's expense;
3. Compensate the owner and formally record the current Easement (or a newly developed Easement); or
4. Any other arrangement that the parties consider reasonable under the circumstances.

The potential conflict is about disputed rights to use or restrict, not about ownership. Easement and HOA Restrictions rather than Adverse Possession is where you should focus.

Aside from Homeowners #1 and #2, are others aware that the HOA has been using their dues to maintain private property?

I could easily see others taking issue with that use of their funds.

Also, is the HOA maintaining the property to a standard that is above and beyond that which is expected of any homeowner? Why not say that a longstanding error has been discovered and the property maintenance will revert back to the legal owners?

I agree with Dave.

Has nothing to do with other posts here. I know from real life how egos and tempers get in the way of making a simple solution into a 10 year legal fight. If you were the only one running your HOA you could make a final decision and be done with it, unfortunately you have many, many others who all have their own idea of what should be done and the affected homeowner who has his own idea of what he wants to do.

Nothing is simple. You'll see..........

If you want to legally fight the homeowner, simply bring up at the next meeting that you will have to raise dues $200 year per homeowner to pay for the legal fees for the next 10 years to fight them to keep the landscaping the same. Ask for a raise of hands for a yes vote.........

Everyone wants a fight until it hits their wallet.

Steve,

Don't waste your time with this thread. The OP is a royal jerk of the first magnitude. He came in wringing his hands saying he knew of no solution to a problem that may or may not exist. Assuming that there really is a problem, I tossed out something he apparently knows nothing about and he argued about the terminology. He attacked you then he admitted that he had told us less than the full story while he expressed his angst at trying to do "the right thing" without being able to articulate what he thinks that is.

I have previously stated my contempt for HOA's that operate on the same level as a boy scout troop with inexperienced and unprofessional directors whose sole qualification for sitting on the board is that they bought a house. This guy is one of them.

This will be my last entry on this thread. The OP is free to express his opinions of me but I will not see them.

I'm still curious to understand what issues would be presented if the true owners were responsible for maintenance.
I'm also struggling with why the HOA should not admit the ancient mistake and revert the responsibility to the rightful owners?

Would an owner also not have every right to seek a legal remedy to prevent the HOA from entering upon their property without permission?
"We're going to continue to maintain this property as if it were a general common element"
"Here's a restraining order saying that you're not"

Seems like that would be the simplest action for the homeowner to take and is exactly what I would do if I was in Homeowner #1's position (or was it #2?). What does the HOA do at that point? Mount an expensive legal battle to take over the land?

SDP

Do you have an issue with what the homeowners would do to the landscaping?

Thanks

I dont see what the big deal is. Simply have a conversation with him "off the record" and tell him whatever they talk about isn't a done deal because you still have to get it approved by the board. Unless you talk to him, nothing will happen.

Googling a legal term, especially an equitable term, gives you a rough idea of the concept, but that's about it. Because it's an Equitable Remedy, it's based on principles of Fairness, not Hard and Fast Rules. In other words, if you went before a judge, it could go either way - It's never a sure thing for either side. And that's why I suggest a sit down to discuss and work out a solution amicably.

"Irreparable Harm" is a judgment call. In this situation, here are a few arguments that supports the HOA's perspective:

1. Entryway to the Community. If the homeowner takes over and does not maintain the property to the level that the HOA has been doing for 30 years, then the special efforts made by the developer to improve the curb appeal of the entire development will be undermined. The potential loss in property values can be reasonably quantified and is irreparable if the HOA cannot continue to maintain its elevated standards for that area.

2. Multiple Resales. If the current owner sells the property, then the HOA would have to start all over again trying to work out a deal. And again on the next sale. The HOA has a limited budget that is used to benefit the entire community and would be irreparably harmed if it had to fight this issue over and over with each successive owner.

3. No Injury to Homeowner. Equitable Remedies are about relative harm. The current homeowner is not being harmed by the HOA spending association money to maintain the area.

4. Right of Entry. The HOA has had access to the area for 30 years. It's purpose is to elevate the appearance for the community. The homeowner should not be allowed to prevent access to the HOA for this 30 year practice.

The easement exists because it has been common practice for 30 years. The status quo should be preserved. Irreparable Harm can come in many flavors. That's why Equitable Remedies are so difficult to pigeon-hole and are so unpredictable. Unpredictability doesn't mean that the rights don't exist - Only that it is better to works things out than fight whenever possible.

Dave

You seem to be making and argument against Adverse Possession (claiming exclusive ownership by the HOA). But we dispensed with that approach earlier in this thread.

This is an argument for Equitable Easement (right to use by the HOA). With an easement, you are not trying to displace the owner. You are trying to prevent the owner from keeping you off his property, which he could do if you didn't have the easement.

Utility companies have easements for their lines to your house. They don't own the property. You do. But you can't prevent them from doing what they need to do to maintain their lines even though its on your property.

Please realize that I was not stating facts. I was merely answering a question on how the OP could make a claim of Irreparable Harm to a court. And I was trying to stay within the limited info that the OP provided. I also said that the outcomes of these arguments are highly unpredictable, so it is better to work things out and not go to court in the first place.

On your question on whether there is any harm in having the legal owner maintain the area, that's the question that the OP hasn't answered. All that he said was that the owner wants to make changes and some HOA members object to those changes. Perhaps he can elaborate.

There is no trespassing where there is an easement. That's why the phone company doesn't need your permission to come on your property. If they didn't have the easement, they would be trespassing.

So I would suggest that the HOA can, if it chooses, continue doing what it has been doing for 30 years.

I will also add the following:

ARS 13-1502 (Arizona Revised statutes):

A. A person commits criminal trespass in the third degree by:

1. Knowingly entering or remaining unlawfully on any real property after a reasonable request to leave by a law enforcement officer, the owner or any other person having lawful control over such property, or reasonable notice prohibiting entry.

2. Knowingly entering or remaining unlawfully on the right-of-way for tracks, or the storage or switching yards or rolling stock of a railroad company.

B. Pursuant to subsection A, paragraph 1 of this section, a request to leave by a law enforcement officer acting at the request of the owner of the property or any other person having lawful control over the property has the same legal effect as a request made by the property owner or other person having lawful control of the property.

C. Criminal trespass in the third degree is a class 3 misdemeanor.

Easements from an AZ law firm, this page discusses all sorts of easements and titles. Per that site:

A prescriptive easement is an easement created from an open, adverse, continuous, exclusive and non-permissive use over a statutory period.

Practice Point: As stated above under continuous easements, the statutory period for prescriptive easements in Arizona is 10 years. Thus, if a person were to use another’s property in such a way that is open, continuous, exclusive, adverse and non-permissive, a prescriptive easement may be created. Once the statutory period is achieved, the easement may become permanent. Many prescriptive easements are verified and made legally binding through judicial determination after the easement has been used or has existed for the 10 year statutory period.

I suspect that an argument could be made that since the Association has been maintaining the property for 30 years that the 10 year limitation has been met. It's also possible that an argument could be made that since the easement was not made legally binding and declared when the new owner purchased the property, that the clock started over.

I would expect that if the property owners and the Association can not reach an agreement that the lawyers will make a lot of money to have this issue ruled on by the courts.

3 things are noteworthy about the case.

1. First, there was a court ruling by judge #1 on what claims would make it to trial. That probably took a year. Then there was a trial before judge #2 who made a ruling on the issues that made it to trial. That could have easily consumed another year. Then there was the appeal on what judge 1 had excluded and what judge 2 decided. That could have easily consumed another year. And if judge 1's ruling had been overturned on appeal, it could have meant another trial (add another year), which could have meant another appeal (add another year). Both sides must have spent a fortune on legal fees. These are not cases that ordinary people can afford to fight in court.

2. The court described the facts as follows: "The Clymers knew they did not have legal title to this land but Violet testified they began maintaining the disputed property because it was 'either do that or look at the weeds.'" So from the beginning, she knew it wasn't hers. That's a very different situation than the OP has here.

3. I still say that an equitable easement (and not adverse possession) is the way to go. It's easier to get the owner to agree to use of his land instead of taking his land. The mutually negotiated easement gets recorded. End of story.

.... or, after 'posting', use the .610 magnum with #4 (rock salt, of course - non-lethal but the receiver will wish it were until they recover)

I can understand you position as well Np.

I view the issue differently. The Association, from what I understand in the postings, has only been maintaining the landscaping on the property. It's not being used for anything specific. It's not clear if the area is being utilized by the membership (walking pets, children playing, etc.) for anything other then for the development to look nice. Additionally, it's unknown what the private owner wants to do with the property (but we are told it's allowed by the CC&Rs).

Therefore, based on this understanding, I don't understand why the Association would want to continue to spend funds to maintain another persons property. Additionally, I think it's simply wrong to deny the legal owner the use of the property (as my understanding is if the Association continues to maintain the property, the owner may no utilize the property the way they want) and continue to expend funds that they are not required to.

If we look at the issue from other perspectives, continuing to expend those funds when not required to can also have implications. For example: Why the Association is exceeding the authority in the governing documents by maintaining private property (vs only the common area)? What is the amount being spent and shouldn't that be born by the individual(s) who are benefiting directly by the maintenance vs. everyone paying for it? If the Association is maintaining that private property, why aren't they maintaining my property or replacing my shrubs, trees, etc., vs. having me do it. Why am I being held accountable to maintain all of my property when others are not? These can be the unintended consequences of continuing to insist on the right to spend Association money to maintain the private property of others.

To me, the correct thing to do is to simply stop maintaining the property. To others, the correct thing to do is to continue to maintain the property. Legally, based on the laypersons opinions offered here, arguments can be made for each side.

Therefore, the question to the Association may simply boil down to how much more money does the Association desire to expend to protect their rights to spend money in maintaining private property? A legal case can take years and run into the 10s of thousands. It may be less expensive to simply purchase the property from the owners if they are willing to sell. If the individual property owners are not willing to sell, then it should be less expensive to simply quit spending Association money to maintain private property.

As the OP stated, it's a unique situation. Just as their Association is split, it appears that the members of this site are also split on what should be done. Hopefully, more information has been provided to help the OP and their Board make an informed decision or to be able to ask the correct questions of attorneys when seeking a legal opinion.

Nice recitation of facts and perspectives Tim. I too question why the HOA should continue maintaining the property.

Yet the OP also stated that there was something unique about this particular area. The description says that it involves a strip of land between a perimeter wall and the street. My impression from reading the post was that the appearance of the strip makes a visual statement about the community itself. Also from the OP's description that the strip is planted with some grasses and trees, I expect that the cost of maintenance cannot be that high.

The situation is not that uncommon. In my own HOA, there are strips of land at the perimeter. Some we know are owned by the township but we maintain them at our expense. Some we think are owned by someone other than the HOA, our members, or the township, but we maintain them anyway because we don't want them to go to pot. Some we know we own but don't take care of because our homes are on one side of the street and the strip we own is on the other. People on the other side of the street take care of it. We have all fallen into a pattern of maintaining and sometimes enhancing curb appeal regardless of actual ownership.

Getting back to your comments, I don't read that any attempt is being made to deny the actual owner use of the property. (Easements don't deny use by the actual owner. Adverse possession does.)

The big question seems to be "How do you explain maintaining private property for one and not for another?" One potential answer is that this strip between the wall and the street is unlike any other area and was built specifically to create a certain look for the entry to the entire community.

But like you Tim, I am merely guessing.

It is a very interesting situation, and as I said, it is far more common than any of us think.

How would you propose allocating the cost of moving the wall? Or would you allow #1 to move the wall even if 2 and 3 don't?

Sd,

That places a whole new twist to the issue.

If the boundary from the street to the wall has any easements on it (utility, etc.), then changes to that easement normally may not be made without approval from all who have easement access. This may include moving the wall.

Does the PLAT show any easements at all on that section of the property?

The question of moving the wall was raised by the OP.


What complicates things is that there are 2 other homeowners involved. So I was trying to get a sense of how difficult it will or won't be to accommodate homeowner 1. It can become a nightmare for the HOA to try to get 3 homeowners to agree and cost allocation is usually a sticking point.

That picture totally didn't work. Nuts