Homeowner claiming rights to common area

Started by SandraB10 • 15 replies • 1649 views

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SandraB10 (California)
Posts: 5

Posted:

I am an officer of a small HOA. One of our homeowners has been representing and using a parcel of common area adjacent to his home as private property. The Board recently learned and has supporting documentation that this parcel is indeed common area and notified the homeowner accordingly. The homeowner then agreed that it is indeed common area, but that they had exclusive use to it. We asked them to provide proof, which they did not do. We had a Board of Directors meeting that was open to all homeowners to advise everyone of the situation. The homeowner was adamant and stated that they would litigate. Subsequent to the meeting, the Board offered them a license to use the property, which they did not sign by the deadline. We now intend to give them 14 days to vacate or we will go in and remove their belongings and restore the property to common area and charge them for the labor costs. If anyone has experienced a similar situation, I would be interested in how you handled it and what the resolution was. Thanks.

MelissaP1 (Alabama)
Posts: 13,836

Posted:

Sounds like your doing the right thing. You may lien them for the work you all do in the removal. As for them threatening to sue. Let them. Your HOA makes out better by counter-suing and presenting their case. It's better for the HOA to be sued in this case if your in the right. Otherwise, inform them the HOA will send them the bill for clean up if they choose NOT to do it themselves within 30 days. If they choose NOT to pay that bill, then the HOA will lien. A lien is much stronger than a lawsuit. It goes with the home, which they can NOT sell till they clear it up. A lawsuit they can sell and move without ever paying a dime unless your HOA spends years tracking down.

Former HOA President

BanksS
Posts: 403

Posted:

Quote:

Posted By SandraB10 on 05/24/2016 2:47 PM
I am an officer of a small HOA. One of our homeowners has been representing and using a parcel of common area adjacent to his home as private property. The Board recently learned and has supporting documentation that this parcel is indeed common area and notified the homeowner accordingly. The homeowner then agreed that it is indeed common area, but that they had exclusive use to it. We asked them to provide proof, which they did not do. We had a Board of Directors meeting that was open to all homeowners to advise everyone of the situation. The homeowner was adamant and stated that they would litigate. Subsequent to the meeting, the Board offered them a license to use the property, which they did not sign by the deadline. We now intend to give them 14 days to vacate or we will go in and remove their belongings and restore the property to common area and charge them for the labor costs. If anyone has experienced a similar situation, I would be interested in how you handled it and what the resolution was. Thanks.

What do you mean by license? I'm not familiar with that term in this context. How long has the homeowner been using this property? If ts been several years and the board did nothing to disallow the use of the common area this will weaken your case.some states have have adverse possession laws on the books that the homeowner may argue.

TimB4 (Tennessee)
Posts: 21,059

Posted:

The fact that they admitted (hopefully in writing) that it was common area can help you a lot.

You didn't specify what they are using it for or what is on the property in question.

Worst case would be that the member claims Adverse Possession.

You may want to consult with an attorney on this one and have a formalized cease and desist letter sent.

KerryL1 (California)
Posts: 14,550

Posted:

I definitely agree with Tim: please consult an attorney. for one thing, I'm not so sure that 15 days' notice is legally sufficient. And you might have to store the possessions somewhere where for a certain period of time

Have you followed the CA proper procedure to call this Owners to a hearing at which the Board (presumably) will decide to levy fines on him until he moves his stuff?

How long he's been using it very well may matter and, again, your attorney can answer that question.

What size is your HOA? What size is this common area? Is it clearly delineated on a plat map or other document?

BanksS
Posts: 403

Posted:

Quote:

Posted By TimB4 on 05/24/2016 3:46 PM
The fact that they admitted (hopefully in writing) that it was common area can help you a lot.

You didn't specify what they are using it for or what is on the property in question.

Worst case would be that the member claims Adverse Possession.

You may want to consult with an attorney on this one and have a formalized cease and desist letter sent.

Thanks Tim for the link to Adverse Possession.

Does the Association want to use the property for a specific purpose? If not, it may be beneficial to the Association for this homeowner to continue using it providing he/she is maintaining the property. Otherwise the maintenance will fall on the Association.

RichardP13 (California)
Posts: 3,868

Posted:

Quote:

Posted By BanksS on 05/24/2016 4:14 PM

The Board can't give the property to the owners, only the owners through a secret ballot vote, Civil Code §4600.

KerryL1 (California)
Posts: 14,550

Posted:

Here's what Richard cited, Sandra: CA Civil Code §4600. GRANT OF EXCLUSIVE USE.

(a) Unless the governing documents specify a different percentage, the affirmative vote of members owning at least 67 percent of the separate interests in the common interest development shall be required before the board may grant exclusive use of any portion of the common area to a member.

SandraB10 (California)
Posts: 5

Posted:

Thanks.

SandraB10 (California)
Posts: 5

Posted:

Thanks.

SandraB10 (California)
Posts: 5

Posted:

Thanks.

SandraB10 (California)
Posts: 5

Posted:

Thanks.

PitA
Posts: 1,416

Posted:

Quote:

Posted By KerryL1 on 05/25/2016 3:21 PM
Here's what Richard cited, Sandra: CA Civil Code §4600. GRANT OF EXCLUSIVE USE.

(a) Unless the governing documents specify a different percentage, the affirmative vote of members owning at least 67 percent of the separate interests in the common interest development shall be required before the board may grant exclusive use of any portion of the common area to a member.

That only grants exclusive use, NOT OWNERSHIP.

? Would said exclusive use terminate upon resale of property ?

Let the attorneys get rich.

And the debate begin

RichardP13 (California)
Posts: 3,868

Posted:

Quote:

Posted By PitA on 05/28/2016 1:16 PM

That only grants exclusive use, NOT OWNERSHIP.

? Would said exclusive use terminate upon resale of property ?

Let the attorneys get rich.

And the debate begin

Answer is YES

NpS (Pennsylvania)
Posts: 4,216

Posted:

If you have any concerns about adverse possession, start using it.

Hold your annual block party in that space. If you don't have an annual block party, start one. Have some fun. Take pictures.

Negates any claim of exclusive use.

Sikubali jukumu. Read all posts at your own risk.

LarryB13 (Arizona)
Posts: 4,099

Posted:

Quote:

Posted By SandraB10 on 05/24/2016 2:47 PM

The homeowner was adamant and stated that they would litigate.

Then make their dreams come true. Sue for trespass and recovery of your attorney's fees. It sounds like they do not have a leg to stand on.

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