Resident structure on common ground

On what basis have you concluded you as a board have the right to sell common property?

In many cases this would not be the case without a homeowners vote to approve.

Either way this will be a complicated and costly project.

1 to determine fair pricing and acceptance with the property owners IF they deem to accept the opportunity to buy

2 to pursue legal action forcing those same owners tomremovemtheir structures, at their cost, with no legal cost to the HOA for enforcing the restrictions.

Which path is easier impossible to tell. As Dr. Phil says " you should never reward bad behavior".

Either way better buckle up and prepare for a few or more unhappy campers.

Jon makes a good point. Read your documents to determine if the Board has the authority to sell common area or if that authority rests with the membership. In my Association, such a decision is up to the Board.

I agree. We have a number of homes that are backed up with common ground and would make the same offer.
The board can sell, lease, rent, etc -including common ground.
Truly we have no use for the land they encroached upon but they can't get it free and we have to remove the liability.

Thanks for the responses!

I'm not an attorney nor do I play one on the Internet but I strongly advise you to get the HOA's attorney involved in this mishigas before you decide what to do or make any offers to sell property you may not be able to sell. I don't know how mortgages are written in Kentucky but most of the mortgages I've seen that involves an HOA includes a description of the individual lot and a line similar to this: and with an undivided interest in the common areas. So you may not be able to sell ANY of the common areas WITHOUT approval of anyone holding a mortgage, nor I suspect as Jon mentioned without the approval of 95-100% of the homeowners.

It was discovered during a survey of all the common ground. An aerial view on the PVA website confirmed it also. It is pretty darn accurate as it shows property lines which I have confirmed by pins.
The big issue here is eliminating the liability.
We have discussed with our attorney and he confirmed we can sell a portion of the land to eliminate the liability.
I believe if we take it to a vote of the entire HOA, the vote will be to remove the structure. That will lead to legal issues we do not want to use our funds on.
Now to throw another wrench into this:
The survey was done to convey the common area from the developer to the HOA. This should have been done 10 years ago but the board then did not want the liability for the earthen dam on the lake.
The developer went into BK, the land was purchased by a land company.
They are honoring the deed of the common area to be conveyed to the HOA.
They gave no homeowner the right to build on land they owned at that time.
So in essence, we are inheriting this issue. Any previous board that may have verbally (there is nothing in writing) given approval truly had no right to do so.
Got to love being a president. At last count, I'm making $0.75 an hour!

Land transfer is signed off. Ready for county approval on plats.
What a mess. I appreciate the input from all of you who have had more experience.
I am viewing running the HOA corporation as a business. A solution needs to be viable, fair and equitable and achieve the desire effect - eliminate the liability.

Leasing the land is also possible, and depending on the lease provisions, will get rid of a lot of liability. Scott stated that the board has authority to lease.

Scott,

If you do an internet search on HOA enforcement policies you will find actual policies of Associations (you will also see articles and ads for companies but those are easily ignored). If you add Kentucky to the front of those words, you may be able to minimize the search to just KY HOAs that have posted their polices online.

How exactly does one acquire a "liability" when someone encroaches on his property?

Would I be correct in assuming that you are seeking legal advice from your insurance agent - and not from your lawyer - because the insurance agent does not charge $250 an hour to talk to you?

LarryB13 raises some very thought-provoking questions.

Can an 'occupier' be shielded from liability for - or able to be later indemnified - by an arms-length / external source of what now allegedly causes injury or loss occurring on the occupiers’ property ie sort of vicarious Occupiers Liability analysis ? Maybe not easy answers, particularly with knowledge of risks & passage of time . . .

Whether shielded or ‘No duty’ Scenario ONE : ten minutes after you blissfully jump onto a plane for a brief midsummer trip - leaving your property vacant & presumably not requiring a checkup - your neighbour without warning nor authority constructs or piles something without your knowledge or authority. It is partially or totally on your property.

You return innocently late on day 2, to see an ambulance taking away your own newspaper delivery person onto whom the buckshee debris has fallen without provocation or victim contribution. The injury occurred while your newspaper was being delivered to your door.

Is this much different from some traffic accident between strangers that happens anywhere offsite ?

But how much of the next scenario is ‘occupier - shielded’ ? Scenario TWO : You consciously accept a legal title to property with a surveyed boundary line visibly encumbered by the same sort of debris in Scenario ONE. But this time you previously saw the encroachments and have chosen to leave it there for some time- maybe for months or years : "I didn't put it there. Not my occupier liability ".
But finally the stuff injures a delivery person / visitor, say 3 years later . . . . .

Now sued or jointly sued by your delivery-person, could you get away with ? : “The neighbour put it there 3 years ago. Not my duty to remove nor cancel delivery !”

Could the neighbour get away with ? : “ My predecessor put it there many years ago; not my duty to remove it either !” .

Looking down at an injured plaintiff, what will a civil court do with these 'We didn't Do It' defences by you and your current neighbour ?

Fortunately sounds like Scott R9s lawyer, insurers & other Directors aren’t keen to run the risks to find out.

Even more there may also be a covenanted duty or statutory duty to defend the integrity of the boundary ( as noted by others ), to adequately address risks technically within the boundary howsoever they got there, maybe to receive future requests to add or enlarge encroachments.

Our situation is to clear up some encroachment issues when the common ground is deeded over by the developer- which will happen shortly.
This will be a one-time fix to an "inherited" situation.
The first two residents were notified this week. What a mess. One resident purchased their home 6 months ago with a deck and concrete playground on common ground. They will seek remedy from the realtor for misrepresenting the land.
More updates to follow.

I'm new at this, so I am addressing both kind souls for answering me.

It's kind of scary. We buy homes in places like this, and then find that the left hand doesn't know what the right hand is doing. There always seems to be one problem or another coming up. I believe that common ground should stay like that; i.e, we all own a portion of it; otherwise it's just not fair that only 67% vote can give homeowners more land.

Yes the issue with the lease is that not all the liability is removed and, as you all know, who wants to collect more money?
The board has chosen to solve the issue for all future owners of affected properties.
Don't want to have to deal with it in the future.