GenoS (Florida)
Posts: 4,276
Posts: 4,276
Posted:
My HOA was originally created to govern a subdivision that was platted in 1989. The 100 lots were drawn up so that a homeowner would own only their building and the land underneath it. Think of a sheet of dough with the lots cut out of it using a cookie cutter whose shape is exactly that of the foundations. The CC&Rs say at the outset that the plan was for the developer to develop common areas and, "... single family residences (hereinafter sometimes collectively referred to as "lots" or "residences", all words having the same meaning and being used interchangeably within this document)."
Equating a "lot" with a "residence" seems absurd but it makes sense if every lot is, in fact, completely covered with a residence. Everything outside the lot boundaries is common property. The CC&Rs were written with that in mind. They do not envision any case where a homeowner would own anything except what was on his lot, i.e. a residence.
Fast forward 4 years and the original developer bailed out after building only 50 of the planned 100 homes. A local homebuilder entered into an agreement with the original developer and the HOA (still controlled by the original developer) whereby the remaining 50 unimproved lots would be bought by the homebuilder looking to build homes. The homebuilder would acquire the lots and be recognized only as a homebuilder and not inherit any status as "subsequent developer" or "declarant". In turn the original developer would turn over control of the HOA to the homeowners.
Fast forward another 2 years and the homebuilder was building homes on some lots that were smaller in size than what the lot size on the plat called for. There probably should have been a re-plat but that was never done. So the situation became one in which several dozen lots had homes on them PLUS an additional amount of land outside of the original foundations' boundaries but within the legal boundaries of the lots.
Technically, the owners of those lots also own that "extra" land. It comes out to about 800 ft. sq. per lot where it exists. Nobody paid much attention to the situation and the conventional wisdom among the homeowners remained "you only own your home and the land under it," even though that wasn't univesally true throughout the subdivision.
Our documents don't adequately address the situation. It was never intended that ANY lot consist of anything other than the residence. The documents refer to the common property and the residences. There have never been any provisions for land that might exist outside of a home that's NOT also common property.
Since the beginning, the HOA has always maintained all of the land in the subdivision as if it was common property. That includes cutting the grass and trimming the trees, shrubs and bushes, not to mention maintaining the irrigation system.
In the last few years we've had an influx of new homeowners as the original ones depart. Several of them are savvy enough to recognize that there's a 20 foot strip in back of their homes that they own. They want to build concrete patios and there's nothing in our documents that says they can't other than the general requirement in the CC&Rs that calls for "harmony" and "common characteristics of the neighborhood" for any alterations to the RESIDENCES. If we rely on LOT = RESIDENCE, which is stated in the CC&Rs, then I think that's a very iffy proposition. In a dispute I think most courts will construe against the drafter of the language, and the HOA would lose that argument.
The HOA has been maintaining those areas as if they were already common property for well over 20 years already. We're evaluating whether to do a significant re-write of our governing documents to address this situation (very expensive) or seek to obtain title to what amounts to 0.9 acres of land through Adverse Posession claims (cost unknown). We estimate that, even if there was no opposition from the affected homeowners, at minimum a survey would be required for each lot and we'd be looking at a $15,000 expense (50 times 300) to start. In my opinion there's a good chance it wouldn't be worth doing. But many of us think we should do something to gain control over the "extra land" before the problem becomes large. That is the way the original developer designed things to be and that desire is expressed in several places in the governing documents. From the day of turnover in 1994 the homeowner-controlled boards here have been bad. They should have demanded that the new homebuilder build in conformance with the plat or pay for a replat that would have taken their own proposed building foundations into account so that there would be no "extra land" to worry about. (30 years later)
Is there any liklihood that the HOA could win an action for Adverse Posession against the homes with the "extra land"? Does anyone have any experience with anything similar?
Thanks, I know that's long
Equating a "lot" with a "residence" seems absurd but it makes sense if every lot is, in fact, completely covered with a residence. Everything outside the lot boundaries is common property. The CC&Rs were written with that in mind. They do not envision any case where a homeowner would own anything except what was on his lot, i.e. a residence.
Fast forward 4 years and the original developer bailed out after building only 50 of the planned 100 homes. A local homebuilder entered into an agreement with the original developer and the HOA (still controlled by the original developer) whereby the remaining 50 unimproved lots would be bought by the homebuilder looking to build homes. The homebuilder would acquire the lots and be recognized only as a homebuilder and not inherit any status as "subsequent developer" or "declarant". In turn the original developer would turn over control of the HOA to the homeowners.
Fast forward another 2 years and the homebuilder was building homes on some lots that were smaller in size than what the lot size on the plat called for. There probably should have been a re-plat but that was never done. So the situation became one in which several dozen lots had homes on them PLUS an additional amount of land outside of the original foundations' boundaries but within the legal boundaries of the lots.
Technically, the owners of those lots also own that "extra" land. It comes out to about 800 ft. sq. per lot where it exists. Nobody paid much attention to the situation and the conventional wisdom among the homeowners remained "you only own your home and the land under it," even though that wasn't univesally true throughout the subdivision.
Our documents don't adequately address the situation. It was never intended that ANY lot consist of anything other than the residence. The documents refer to the common property and the residences. There have never been any provisions for land that might exist outside of a home that's NOT also common property.
Since the beginning, the HOA has always maintained all of the land in the subdivision as if it was common property. That includes cutting the grass and trimming the trees, shrubs and bushes, not to mention maintaining the irrigation system.
In the last few years we've had an influx of new homeowners as the original ones depart. Several of them are savvy enough to recognize that there's a 20 foot strip in back of their homes that they own. They want to build concrete patios and there's nothing in our documents that says they can't other than the general requirement in the CC&Rs that calls for "harmony" and "common characteristics of the neighborhood" for any alterations to the RESIDENCES. If we rely on LOT = RESIDENCE, which is stated in the CC&Rs, then I think that's a very iffy proposition. In a dispute I think most courts will construe against the drafter of the language, and the HOA would lose that argument.
The HOA has been maintaining those areas as if they were already common property for well over 20 years already. We're evaluating whether to do a significant re-write of our governing documents to address this situation (very expensive) or seek to obtain title to what amounts to 0.9 acres of land through Adverse Posession claims (cost unknown). We estimate that, even if there was no opposition from the affected homeowners, at minimum a survey would be required for each lot and we'd be looking at a $15,000 expense (50 times 300) to start. In my opinion there's a good chance it wouldn't be worth doing. But many of us think we should do something to gain control over the "extra land" before the problem becomes large. That is the way the original developer designed things to be and that desire is expressed in several places in the governing documents. From the day of turnover in 1994 the homeowner-controlled boards here have been bad. They should have demanded that the new homebuilder build in conformance with the plat or pay for a replat that would have taken their own proposed building foundations into account so that there would be no "extra land" to worry about. (30 years later)
Is there any liklihood that the HOA could win an action for Adverse Posession against the homes with the "extra land"? Does anyone have any experience with anything similar?
Thanks, I know that's long