Encroachments

Our condo units abut a river bank. The common area of our association ends above the river bank, and another private owner owns land between our boundary line and the river. One of our owners has begun altering the land belonging to the private owner with the intent of fencing it in as his own land, even though he was told verbally that he is encroaching on land owned by someone else. I reported it to our board (I am on the board) but our management company said it is none of our business and the HOA shouldn't get involved because the encroachment isn't on our land. I took the stand that we are aware of his encroachment and that the HOA has a responsibility to send the unit owner a letter stating he is outside of the common area boundary and encroaching on private land owned by someone else.

Does anyone have any guidance on this subject?

Thank you,
Charlotte B

The management company is wrong. A member of the association they manage is encroaching on private land and they are aware of the situation and they need to send a letter to cease and desist, or the owner of the land they are encroaching may take legal action. Actually the action the private land owner should be taking is against the entire association.

Thank you Maxine for your reply. I completely agree with you; we know about it and doing nothing puts the association at risk for legal reasons. Our property management company said the private owner can't sue the HOA they would have to sue the condo owner individually!!

CharlotteB2, I tend to agree with your concerns. The board should take steps to protect itself. The first step is to contact the condo attorney and get his or her advice. Ask the attorney whether the insurance company should be informed as well.

What I think the next step might be is for the manager or the board to contact the private land owner; explain what is going on; and ask what the private land owner knows about this.

A bit more to explain my thinking and some other steps:

-- Is there an easement whereby the condo owners can cross the private land owner's land to get to the river?

-- My understanding of an "encroachment" in the law is when one land owner uses a fence or other structure to cross onto adjoining land, with the adjoining land belonging to a second land owner. The condo owner is not encroaching. If the private land owner has not given permission for the condo owner to be on the land, then he is certainly trespassing.

-- If these retaining walls are owned by the private land owner, and the private land owner has not given the condo owner permission to be on the private land owner's land et cetera, then the condo owner is stealing along with trespassing.

-- Do your covenants state anything about how common area is not to be used for criminal or offensive activity? If so, and assuming the private land owner has not given the condo owner permission et cetera, I would issue a violation immediately to the condo owner, for conducting unacceptable activity, as prohibited by covenant xyz, on common area.

-- Regarding the damage that the condo owner did: I think it's up to the private land owner to decide how to proceed. The condo association did not encroach and do damage (remove the retaining walls). The condo association did what it could to stop the damage. If the private land owner goes after the condo association for the damage, the condo association should, in turn, go after the condo owner to remedy (pay) for remediating the damage.

Thank you for your comments AugustinD. There are no easements which give us permission to cross their land to get to the river. The retaining walls belonged to the private owner and our unit owner did not have permission to remove them.

I found an article on the internet entitled "HOA and Encroachments, and here is how they defined encroachments: Encroachment is defined as unlawful interference in another's land or with their rights. This can take the form of building a structure or other item which sits in whole or in part on a neighbor's property. Simply put, it is when someone goes onto another's property without permission and interferes with the other's property rights. Encroachment is generally not a criminal issue but is something tht is dealt with through the civil legal system.

Our CCR's do not address criminal or offensive activity, unfortunately. The CCR's were drafted in 1993 and have not been updated.
s

I agree completely; our attorney needs to be notified. Thank you again for all of your valuable insight and advice, I sincerely appreciate it.

CharlotteB

I side with the management company it that the land is not ours so we are not responsible for what someone does on it. That said, I would, on the QT, notify the land owner.

For "on the QT" communications, especially where a director may not want to deal with flak, pushback, expending energy et cetera for taking issue with a manager or a board majority, commonly employed are anonymous emailing services like https://www.guerrillamail.com/compose

Also keep in mind that anyone accusing the Jerk will need proof, otherwise he can turn around and sue his accuser. If the accusations are true, then he's Not a Nice Guy. So step carefully.

Yikes, I missed the bit about the retaining walls.

Assuming these are at the edge of the association's common area, then this is absolutely association business and the board should be taking action against the owner who is doing this (who is a fool on top of everything else). The local municipality may also have things to say about it, so add the appropriate officials there to the list of people the board should be talking to - this could also have the advantage of alerting the owner of the affected property.

I agree with your manager. You have no authority or responsibility for what association members do outside of association property. I also think the HOA will lose credibility if they start sending out letters trying to control things they have no authority over.

As an individual, if you feel a moral obligation to notify the victim owner of what is going on, that is fine but the HOA should not be getting involved.

I was agreement with you until I realized someone said two retaining walls were removed. That shed a different light on it.

I did try to talk to the unit owner; I told them it wasn't our land and he said he knew it wasn't our land but he was going to go ahead and finish building his own concrete block retaining wall, plant grass and fence in the area. He completely disregarded that he didn't get permission from the board, as required by the bylaws to do anything. There was one stone retaining wall that is on HOA property and the rest was on private property. I did feel a moral obligation; the area from our boundary line to the river is probably only 40 feet. The native vegetation that was removed was also removed. I notified the private party as an owner and not as a board member. I live next door to the owner who is altering the landscape.

This happened a few years ago in my area:

There is a condo community located at the top of a bluff, with a long and sturdy retaining wall separating the property from an adjacent interstate highway. At some point the common area behind the retaining wall began to subside, due to a combination of excessive rain and the occasional minor earthquake. Then the retaining wall started to break down in places.

Fortunately condo owners had been complaining about signs of structural problems and were able to get out of the affected buildings before the area collapsed. Otherwise this could have been a disaster, especially if the association had ignored the problem (which the board had tried to do until they no longer could) and the area had come down during rush hour.

I think one or two buildings ended up being total losses, along with the common area they were sitting on. As it was, a bunch of county and state officials, engineers, lawyers and insurance folks were kept busy for a while, as was the board. Very glad I was not an owner in that community.

Our property managers standard line is "its not our problem". I worked in commercial real estate for 45 years and went to court numerous times on behalf of the bank I worked for when little issues ballooned into big problems. Thank you again for all of your valuable input; in the end I let my moral compass make the decision, not as a board member but as a homeowner watching someone defy property boundaries on purpose for his own gain.

I live in a community in Florida that was basically built on a swamp that surrounded a very large rock quarry that is now a lake. We run into encroachment issues all the time. Many of the houses back up to "preserve" land and the others are on the big lake or other man-made lakes. Everyone sees all the property between their house and the lake or preserve as "theirs". Nobody bothers to look at their survey and realize not only is here at least a 20-foot easement on almost every lot but also there are other restrictions. On the preserve property it is particularly tricky because we have sheet-flow water that drains into the lake - and any changes to the water erainage is regulated by a state water board. Homeowners don't want to be told they can't build a fence or put a patio or pool in the easements and the HOA had volunteers reading the architectural applications who could not even read a survey. We now warn people that even if it's been there for several years, if we have to do maintenance you will have to remove.

Our units were built in 1974 and are post and pier, there is no foundation. The units are riverfront, but sit above the water on a mild slope. The structural engineer said bracing needs to be installed to attach the main support beams to the driven wood piles. That is to stop any lateral movement. The work proposed is much more significant than adding bracing, and much more expensive. It would be good to add earthquake bracing, but it the cost is significant so I believe owners should have a vote on the matter. The board is calling it a repair so the owners don't get to vote, but I am the lone member who feels we should listen to the owners and let them vote on it.

You are so right, thank you for letting me know!

If understood correctly, what you say is that a co-owner`s trespassing construction or whatever is not literally WITHIN the survey boundaries of your common lands. Nor are the ``retaining walls` also being removed , you believe .

Aside from whether the retaining walls are there for flood control or habitat protection or both, an important issue may also STILL turn out to be exactly where are your common lands survey monuments . Chased enough survey pins to be cautious about such determinations in certain terrains by respectfully untrained folks ( if that`s possibly the case ) .

Wonder what else is planned to eventually occur offsite ?

The ``don`t get involved`` is like ``stay out of someone else going shoplifting``. But if any is OR WILL BE within your survey boundaries, some bad stuff might follow. Even getting dragged along for the ride may be expensive.

One cautionary tale : " XXX Park OWNERS' illegal wetland barrier DRAGS POA into guilty plea: HAVER v CV Conservation Authority" https://ontario.cafcor.org/index.php?option=com_fireboard&Itemid=46&func=view&id=19197&catid=9#19197`

( . . . In 2016 the barrier-erectors claim to have been authorized by their POA's ( then- ) President. ( WITHOUT GETTING THE REQUIRED approval of the XXX Conservation Authority. They not only constructed an illegal wetlands barrier, but DID SO ON WHAT TURNS OUT TO BE ON THE COMMON LANDS of the XXXX Estates Association. . . . The unauthorized barrier resulted in the Association being charged and in 2019 pleading guilty to environmental & flood control Offences! ( here it's an absolute or strict liability, whichever ). AS PENALTY the Authority & the POA agreed on the light penalty of the illegal barrier being removed.

However in THREE legal venues these barrier erectors had the chutzpah to keep demanding INTERVENOR STATUS in order to try to halt the dismantling of their buckshee barrier on common lands. Fortunately Ontario's Court of Appeal drop-kicked their claim to preserve the illegal barrier and awarded $ 20 K in legal costs against them. But it's likely only a portion of what the POA probably had to pay to get clear of the prosecution & later litigation )

Hello, I posted on the wrong topic last week, this issue has been resolved. I apologize I didn't post this sooner. Thank you for your kind reply.

I contacted the owner to the land that abuts our HOA common area. They came out and found the boundary stakes and marked the property line in front of the owner who was encroaching on their property. This owner was also excavating on HOA common area without approval. He was sent a letter by both the abutting property owner and our board that the landscaping had to be restored, which is in process. (This owner had been informed on two separate occasions that approval was necessary and yet he did not seek approval.) We now know where our common area property line ends which is one positive outcome of this issue since we did not have to pay for a survey.