Replated Subdivided Lots - Still HOA?

CoryB (Missouri)
Posts: 8

Posted:

We have a small HOA established in 1973 in Missouri.

Our past HOA board has consisted of years of board members who ran the HOA, sometimes with only two members.
Is so small (and cheap) that very few questions have ever been asked.

We now have a new - more formal - board with all four members.

Our first order of business is to review if two lots, which were officially subdivided and replated are actually in the HOA.
The lots were rezoned, have a different name, and the new property lines have been recorded at the county for nearly 20 years now.
Q: If an existing lot has been replated and resubdivided, is it still in the HOA?
(Plats attached)

Our second question would be...

Has anyone seen adverse possession of HOA easements?
Given the time this HOA has been in existence, some members (including board members) have taken it upon themselves to create driveways within the HOA easements.
The new board has been told, some of these areas may now fall under "adverse possession" rules given that no objections have been filed for these encroachments for decades.
Has anyone witnessed common areas falling into these types of scenarios?

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SheliaH (Indiana)
Posts: 6,964

Posted:

You really need to discuss this with your association attorney and the zoning agency. If the lots have a different name, they may or may not be part of the HOA. I'd also want to know if the developer did this or someone else (like the current/previous owner) - there may be some documentation in the zoning office you'll want to look at. Perhaps ask the developer if he/she/they are still around.

If these lots took over what was actually HOA land, you may have a statute of limitations issue if the HOA wants that property back or compel the owners to pay for it. This isn't the sort of thing where you should depend on whatever you're told on the internet. That said, Googling the topic would be helpful - I found this article that can give you a start, but note the law may be different in your area - hence you'll have to speak to the association attorney about your options, if any.

https://www.hopb.co/blog/guide-to-understanding-encroachment-in-hoa-communities

If it is not right do not do it; if it is not true do not say it. Marcus Aurelius

AugustinD
Posts: 3,698

Posted:

Quote:

Posted By CoryB on 05/18/2022 7:51 AM
We have a small HOA established in 1973 in Missouri.

Our past HOA board has consisted of years of board members who ran the HOA, sometimes with only two members.
Is so small (and cheap) that very few questions have ever been asked.

We now have a new - more formal - board with all four members.

Our first order of business is to review if two lots, which were officially subdivided and replated are actually in the HOA.
The lots were rezoned, have a different name, and the new property lines have been recorded at the county for nearly 20 years now.
Q: If an existing lot has been replated and resubdivided, is it still in the HOA?
(Plats attached)

All this forum can do is prepare you for a meeting with an attorney. Observations and steps I would take in preparation for said meeting with an attorney:

-- The 1973 plat you attached lists several bona fide covenants. In 1973 and for many years afterward, these covenants applied to lots 37 and 38 and all the other lots and land shown, as described in detail by the surveying notes on the plat.

-- Go to the County Clerk and look up the deeds for the lots shown on the 2010 Harbor Estates Extension plat. What do these deeds say about covenants?

CoryB (Missouri)
Posts: 8

Posted:

Quote:

Posted By AugustinD on 05/18/2022 8:43 AM

Posted By CoryB on 05/18/2022 7:51 AM

-- Go to the County Clerk and look up the deeds for the lots shown on the 2010 Harbor Estates Extension plat. What do these deeds say about covenants?

I assume the following would be the important lanaguage...

"Subject to all restrictions and reservations, conditions and easements of record"

AugustinD
Posts: 3,698

Posted:

Quote:

Posted By CoryB on 05/18/2022 7:51 AM

Has anyone seen adverse possession of HOA easements?
Given the time this HOA has been in existence, some members (including board members) have taken it upon themselves to create driveways within the HOA easements.
The new board has been told, some of these areas may now fall under "adverse possession" rules given that no objections have been filed for these encroachments for decades.
Has anyone witnessed common areas falling into these types of scenarios?

When easements are thought to be in play, I believe the legal principle involved is called "adverse prescription." The basics appear to be that the property owner (the "disseisor" here) attempting to gain rights via "adverse prescription" must do so in a way that the easement ceases to be available.

For what purpose is the easement? Do the driveways, as built, prevent physically access to the easement?

Such is how the discussion with a real estate attorney might begin on this subject.

AugustinD
Posts: 3,698

Posted:

Quote:

Posted By CoryB on 05/18/2022 8:53 AM

I assume the following would be the important lanaguage [on a deed?]...

"Subject to all restrictions and reservations, conditions and easements of record"

Do the 2010-ish "Harbor Heights Extension" deeds say the above?

CoryB (Missouri)
Posts: 8

Posted:

Quote:

Posted By AugustinD on 05/18/2022 8:53 AM

Posted By CoryB on 05/18/2022 7:51 AM

For what purpose is the easement? Do the driveways, as built, prevent physically access to the easement?

In one case, no - the easement is still fully accesible.

However in another (which we are solutioning the appropriate discussion), the home owner removed stairs which allowed passage of property owners along a walking path.
This one, I believe is well beyond any argument in violating the HOA rights in the easement, however...
It has been like this for well over two decades. I would assume some sort of legal fight in an attempt to replace the stairs under the basis of adverse possession.

CoryB (Missouri)
Posts: 8

Posted:

Quote:

Posted By AugustinD on 05/18/2022 8:55 AM

Posted By CoryB on 05/18/2022 8:53 AM
Do the 2010-ish "Harbor Heights Extension" deeds say the above?

Correct, they do.

AugustinD
Posts: 3,698

Posted:

Quote:

Posted By CoryB on 05/18/2022 9:02 AM

Posted By AugustinD on 05/18/2022 8:55 AM

Posted By CoryB on 05/18/2022 8:53 AM
Do the 2010-ish "Harbor Heights Extension" deeds say the above?

Correct, they do.

Then my layperson's impression is that the "Harbor Heights Extension lots" shown on the 2010 plat are still subject to the covenants shown on the 1973 plat. I do not think re-platting and re-naming xyz undoes covenants that typically, "run with the land." The latter phrase is a legal term of art yada. The covenants are tied to the land and not subsequent owners, unless maybe the covenants are amended pursuant to the terms of amending. Normally the "run with the land" phrase is somewhere in a HOA's governing documents and I think sometimes, on a plat. Or maybe by implication (based in a lot of case law), the restrictions, covenants yada on the 1973 plat do run with the land.

I keep in mind that the county or city approves subdivisions on condition that the subdivisions comply with what is on the plat. It is a big deal for a developer or owner to not comply with what is on the plat.

Covenant disputes, of the flavor here and of many other flavors, date back to at least the early 1800s, with England leading the way on establishing much of the law on covenants.

Many real estate attorneys will have expertise on the subject.

CoryB (Missouri)
Posts: 8

Posted:

I posted two screen shots showing the issue.

Driveway shows the property where the stairs were removed.

Driveway2 shows the property where there is encroachment, but it does not hinder access.

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CoryB (Missouri)
Posts: 8

Posted:

Quote:

Posted By AugustinD on 05/18/2022 9:14 AM

Posted By CoryB on 05/18/2022 9:02 AM

Posted By AugustinD on 05/18/2022 8:55 AM

Posted By CoryB on 05/18/2022 8:53 AM
Do the 2010-ish "Harbor Heights Extension" deeds say the above?

Correct, they do.

Then my layperson's impression is that the "Harbor Heights Extension lots" shown on the 2010 plat are still subject to the covenants shown on the 1973 plat. I do not think re-platting and re-naming xyz undoes covenants that typically, "run with the land." The latter phrase is a legal term of art yada. The covenants are tied to the land and not subsequent owners, unless maybe the covenants are amended pursuant to the terms of amending. Normally the "run with the land" phrase is somewhere in a HOA's governing documents and I think sometimes, on a plat. Or maybe by implication (based in a lot of case law), the restrictions, covenants yada on the 1973 plat do run with the land.

I keep in mind that the county or city approves subdivisions on condition that the subdivisions comply with what is on the plat. It is a big deal for a developer or owner to not comply with what is on the plat.

Covenant disputes, of the flavor here and of many other flavors, date back to at least the early 1800s, with England leading the way on establishing much of the law on covenants.

Many real estate attorneys will have expertise on the subject.

I appreciate the response, makes sense now with the Deed language considered.

AugustinD
Posts: 3,698

Posted:

Quote:

Posted By CoryB on 05/18/2022 9:01 AM

In one case, [snip] the easement is still fully accesible.

However in another (which we are solutioning the appropriate discussion), the home owner removed stairs which allowed passage of property owners along a walking path.
This one, I believe is well beyond any argument in violating the HOA rights in the easement, however...
It has been like this for well over two decades. I would assume some sort of legal fight in an attempt to replace the stairs under the basis of adverse possession.

I am going to re-state this so I can keep the facts in mind. Do correct me if I have the facts wrong.

-- For some years starting around 1973, the HOA (so to speak) had a walking path.

-- Access to the walking path was via a set of stairs.

-- The stairs were (and may still be) a lawful easement owned by the HOA.

-- Some (jackass) owners removed the stairs. For many years now the stairs have not existed.

-- What does "solutioning the appropriate discussion" mean? Respectfully: Plese keep your sentences short. Try not to use fancy language. Write as if your audience consists of kindergartners.

-- When you meet with an attorney, keep in mind how the less black-and-white the facts and law are, the more this will cost the HOA to try to resolve. Key word being "try." If success does not seem guaranteed, aim for a compromise with the owners.

-- I think a competent real estate attorney will say that, from the standpoint of who has liability when xyz happens on the easement (or former easement), the situation is important to resolve.

-- Real property and easement ownership disputes can be intense, lasting for years.

-- Get together the documentation of who has the rights to the stairs, the path and any easements involved and consult a good attorney.

AugustinD
Posts: 3,698

Posted:

Cory, by any chance are we talking about lake access here, and possibly down one of those steep slopes or in a stretch along the lake where access is quite iffy unless one takes a certain route? Some owners do not want their neighbors accessing the lake via the owners' property? But the neighbors say, "wait a second. The HOA has an easement that gives us neighbors the right to walk across so-and-so's land, driveway, et cetera."?

CoryB (Missouri)
Posts: 8

Posted:

Quote:

Posted By AugustinD on 05/18/2022 9:27 AM

Posted By CoryB on 05/18/2022 9:01 AM

In one case, [snip] the easement is still fully accesible.

However in another (which we are solutioning the appropriate discussion), the home owner removed stairs which allowed passage of property owners along a walking path.
This one, I believe is well beyond any argument in violating the HOA rights in the easement, however...
It has been like this for well over two decades. I would assume some sort of legal fight in an attempt to replace the stairs under the basis of adverse possession.

I am going to re-state this so I can keep the facts in mind. Do correct me if I have the facts wrong.

-- For some years starting around 1973, the HOA (so to speak) had a walking path.

-- Access to the walking path was via a set of stairs.

-- The stairs were (and may still be) a lawful easement owned by the HOA.

-- Some (jackass) owners removed the stairs. For many years now the stairs have not existed.

-- What does "solutioning the appropriate discussion" mean? Respectfully: Plese keep your sentences short. Try not to use fancy language. Write as if your audience consists of kindergartners.

-- When you meet with an attorney, keep in mind how the less black-and-white the facts and law are, the more this will cost the HOA to try to resolve. Key word being "try." If success does not seem guaranteed, aim for a compromise with the owners.

-- I think a competent real estate attorney will say that, from the standpoint of who has liability when xyz happens on the easement (or former easement), the situation is important to resolve.

-- Real property and easement ownership disputes can be intense, lasting for years.

-- Get together the documentation of who has the rights to the stairs, the path and any easements involved and consult a good attorney.

You have this correct:

Solutioning a response means....
1. The new board, now reviewing the many areas of concern, are trying to introduce themselves while maintaining a level of compassion.
2. These areas that have encroachment issues, they need to be addressed - one way or the other - but we want to try and keep it out of court.
3. Our goal is to approach these owners with a fact/legal based opinion, document it, and kill the whispers in the community.

CoryB (Missouri)
Posts: 8

Posted:

Quote:

Posted By AugustinD on 05/18/2022 9:30 AM
Cory, by any chance are we talking about lake access here, and possibly down one of those steep slopes or in a stretch along the lake where access is quite iffy unless one takes a certain route? Some owners do not want their neighbors accessing the lake via the owners' property? But the neighbors say, "wait a second. The HOA has an easement that gives us neighbors the right to walk across so-and-so's land, driveway, et cetera."?

One easement, is simply a walk path from one level of the HOA to the other. It is steep, hence the need for stairs (which were removed).

The other easement is spot on, it is a easement to allow lake access to HOA property owners.
It also allows those few lucky members who took advantage, a location to connect a dock.