Board member taking possession of Common Area

Started by GaryW13 • 9 replies • 377 views

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GaryW13 (NY)
Posts: 14

Posted:

Hello,

After months of my attorney asking for a copy (many months after filing suit), the defendant board finally caved and gave me a copy of the governing documents.
I thoroughly inspected the offering plan and have come to discover that the rear yard was intended as a common area. I then looked into the certificate
of occupancy, and it confirmed along with the governing documents, that the basement originally had 2 rec rooms that were intended to provide access to the owners
to the rear yard.

However none of this is currently the case. The officer/director/managing agent, who owns the ground floor unit, at some point in time (illegally?) converted
one of the basement rec rooms into his own private kitchen - adjacent to the boiler room. As such there is no access to the rear yard unless going through his kitchen.
This "status quo" has been going on for 2+ decades and to my knowledge only one person has brought this issue up and was immediately shot down by the board member.

What is my recourse as an owner to reclaim the backyard and give it's ownership back to the owners? Thanks

-G

BillH10 (Texas)
Posts: 1,217

Posted:

Gary

Ask your attorney. Your situation is exceedingly complex, the opinion and guidance of your attorney are critical.

TimB4 (Tennessee)
Posts: 21,059

Posted:

Quote:

Posted By BillH10 on 01/02/2022 9:41 AM
Gary

Ask your attorney. Your situation is exceedingly complex, the opinion and guidance of your attorney are critical.

Agree.

AugustinD
Posts: 3,698

Posted:

Quote:

Posted By GaryW13 on 01/02/2022 9:21 AM
The officer/director/managing agent, who owns the ground floor unit, at some point in time (illegally?) converted
one of the basement rec rooms into his own private kitchen - adjacent to the boiler room. As such there is no access to the rear yard unless going through his kitchen.
This "status quo" has been going on for 2+ decades and to my knowledge only one person has brought this issue up and was immediately shot down by the board member.

What is my recourse as an owner to reclaim the backyard and give it's ownership back to the owners?

I would read up on adverse possession law in New York. See for example: https://www.nolo.com/legal-encyclopedia/who-can-claim-property-based-adverse-possession-new-york.html

I think this might apply to the rear yard, meaning I do not like your chances of recovering the HOA's possession of the rear yard via, say, a derivative action (in court). I am less certain about recovering use of a room in the building.

I would also have liability concerns. E.g. if there is a slip-and-fall in this kitchen in the basement, who is liable? You might be able to talk to the HOA's insurer and get some help on this.

GaryW13 (NY)
Posts: 14

Posted:

Thank you AugustinD for pointing out that law.

I will look deeper into it but my attorney suggested a similar thing (starting a new derivative action).
Unfortunately it would be impossible to get current owner support for this, as the Board, their family and friends,
own the majority of the units in the building and have been running the show for 2+ decades.

MelissaP1 (Alabama)
Posts: 13,836

Posted:

I am confused as those documents should bee public. So why did your lawyer not tell you this or get them for you?

Former HOA President

GaryW13 (NY)
Posts: 14

Posted:

These documents are non-privileged records of the association and inspection should be made available at the request of a homeowner.
My board did not want to disclose these documents after numerous written requests, prior to litigation, along with a number of other documents.

does that make sense Melissa? What are your thoughts about the actual topic of the common area?

MelissaP1 (Alabama)
Posts: 13,836

Posted:

I think it is no longer an HOA issue but a local one. Is the kitchen installed up to code? I mean it may cost the entire HOA to pursue that angle. However, taking over building space and installing a kitchen has has code requirements. May be time to look into the ramifications of that.

Former HOA President

AugustinD
Posts: 3,698

Posted:

Quote:

Posted By GaryW13 on 01/02/2022 2:10 PM
Thank you AugustinD for pointing out that law.

I will look deeper into it but my attorney suggested a similar thing (starting a new derivative action).
Unfortunately it would be impossible to get current owner support for this, as the Board, their family and friends,
own the majority of the units in the building and have been running the show for 2+ decades.

For a derivative action, you do not need owner support. You need money to pay an attorney.

The COA/HOA is being incredibly foolish and reckless with regard to liability here.

BenA2 (Texas)
Posts: 1,273

Posted:

I would guess that, after 2+ decades, only an attorney can answer this after many hours of research. I am sure there are probably multiple legal issues.

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