Dilemma on lot encroachment into common area of pool

Currently we have a developer who owns a lot that encroaches into the commons area & actual pool. This developer acquired the property 7+ years ago through a BK when he purchased 70% of the lots in the development. We now need to replace a old and unsafe bathroom structure for the pool and need to have it placed near the pool for safety reasons as the old one is to close to a creek and needs to be torn down for safety reasons. The lot in question extends some 35’ into common POA property and about 8’ into the actual pool itself. We have tried for years to get the developer to sell it, donate it and he refuses to budge on this. What I would like to know is there anything legally we can do in this matter? He cannot sell it with this encroachment on it that we are aware of so it will just sit there. Any ideas? Respectfully,

The pool and all common grounds were transferred to the HOA the lot in question remained with the developer. The actual plot map shows that the lot line runs thru the HOA property by 35'.

Forgot to add, what is the 35 foot strip shown on the plat? Is it possibly an easement granted to the association for use of that portion of land?

The 35' strip is the lot line there are 15' easements between all lots for utility access. Thanks for the feedback...

I took a quick look at your county clerk's office website and didn't find the plat for lot 22, you might have to go in person to review. One record I found suggested it is in Cabinet 2, slide 120D. I've attached a different plat with identifying info blurred, but you can see the lot has a variety of easements and setbacks in addition to the 12.5 foot utility easement that you are already aware of. I'm not positive what all of the abbreviations mean, but 25' UE & DE is probably a Utility and Drainage easement. The 100', 50', and 25' BS are probably building setbacks.

You would really need to find the plat for the relevant lot to see what easements exist.

A little late now, but according to this website's rules, you should not post identifying info for your community.

Sure thing, lets just get a hoist and lift up the 30 X 50' inground pool! No problem....NOT!

RESPONSES IN CAPS! NOT SCREAMING.......

Is the pool area is a common element? YES IT IS ON COMMON POA PROPERTY The developer pays dues to contribute? YES, THE DEVELOPER PAYS JUST LIKE ALL PROPERTY OWNERS FOR ALL LOTS AND ASSESSMENTS. What is the agreement of HOA common area? COMMON AREAS ARE SHARED WITH ALL LOT OWNERS, NO LOT OWNER MAY MAINTAIN ANY COMMON POA PROPERTY WITHOUT BOARD APPROVAL. Is there exclusive use areas? NO, WE HAVE NO EXCLUSIVE USE AREAS. It does look like the scale is off on the map.

Has the HOA had the land surveyed? NOT YET TO MY KNOWLEDGE, AERIAL MAPS LIKE THE EXAMPLE I SHOWED ARE ALL I HAVE FOUND, WILL GO TO COUNTY MONDAY TO CHECK PLAT MAP. Make sure there is a proper survey to work from. It will cost some money but need to make sure where the lines belong. Once that is established .your HOA may have some more weight. If the owner doesn't want to sell, then they may make responsible for what is on their property. Which may make them take a different look at the situation. SO YOU ARE SAYING THAT THE OWNER OF LOT#22 MAY HAVE LIABILITY FOR THE AREA IN WHICH HIS PROPERTY ENCROACHES ON?? INTERESTING....

Melissa makes a good point about the survey. The image you posted appears to be property boundaries superimposed on an aerial photo or satellite image, but no telling how accurate it is. The plat will tell you what easements and setbacks exist, but probably won't show where the lot is in relation to the pool. I checked a popular real estate site and their representation of the property shows that the pool doesn't encroach (image attached). Obviously, this is far from definitive, but does add a little uncertainty to the mix. The plat and a survey should tell you if you have a problem or not. If you do, legal advice will probably be your next step.

It sort of falls under if your tree branches goes over the neighbors property line, neighbor can cut those branches down. It is like an invisible straight line that goes straight up. This situation it is the pool and not the branches. Same concept. This is what you have to work from. A proper survey certainly would help define the lines.

Kenneth,

What is the basis for your claim of encroachment? I note that the map you included does not bear the seal of a licensed land surveyor. What I see are lot lines that have been superimposed on an aerial photo. I have seen these in the past, including from my own county assessors, and I have prepared a few myself using photos from Google Earth. The bottom line is that this map carries no legal weight whatsoever. I have seen hundreds of documents prepared by surveyors and not one looks like the map you attached.

I would assume that when the property was first subdivided that surveyors marked the corners with pins. The pins may be nothing more than a short length of iron rod or rebar or the surveyor may have marked the corners with brass or aluminum caps on top of the pins. I would suggest trying to find the pins that mark the line between lot 22 and the common area where the pool is and sight down them to see if there is any visible encroachment.

I guess "pins" may vary by locality. On my 40-acre parcel the surveyors marked corners between parcels with an aluminum cap on a 1/2" steel rod. One side of my parcel follows a curve in a road and they set four pins, each of which was just 1/2" smooth steel rod. The pins stuck up a couple inches from the ground. Because the road grader had already destroyed one marker and was inching towards another, I installed T-posts at each pin along the road to keep the grader away from them.

BTW, I located my pins with a Garmin E-Trex Explorer GPS unit but to do that requires a lot of knowledge of surveying and geometry plus a heaping helping of extreme nerdiness.

Kenneth D3 TX :
1 Does the developer's transfer document directly or indirectly subject ownership to some authority for the pool ?

2 - Respectfully & alternatively, unless there is an error/inconsistency between the surveyed boundary lines on the "developer's" lot and whatever lawfully constitutes the common land boundaries as properly documented transferred to your association or to your group in common, you may be no more than squatters.

3 - If your state & title regime empowers acquisition by adverse possession, then maybe your association can get a court awarded boundary revision. Otherwise making further investments could be wasting bucks if the developer decides to seek a court order to expel your squatting.

4 - If the "developer" would prefer the status quo /is willing to tolerate a squatting activity with some degree of legal shared risk, & you don't want to seek a boundary alteration or pay enough to change that, isn't this next question :

"Should we spend any more bucks on the pool ? Shouldn't we just remove the squatting activity onto what is common land ?"