Encroachment of house on common property

Your running into an adverse possession issue and the Associations timeline to challenge it may have passed.

You need to talk to an attorney versed in adverse possession.

Our declaration spelled out the % of ownership and any changes would have required an amendment by the owners. It also makes me queasy giving the Board the authority to sell off any common property. If it was me I would be enlisting legal aid and would not cave into the demand letter.

-- I think any paperwork indicating approval by the ACC is going to muddy the legal waters greatly. The more paperwork indicating the HOA had notice of the encroachment years ago, the more it could be said that the lot owner relied on promises the HOA made that it was fine to enclose the patio, implying the encroachment was fine, and so on. Un-doing the enclosure of the patio is expensive. "Reliance on a promise" + high cost of undoing the reliance = somewhat more likelihood a court would find in favor of the lot owner?

-- Who has liability for an incident on the encroached property is a big concern and must be identified. From experience, competent HOA/COA attorneys read HOAs/COAs the riot act in situations like this.

-- TimB4's Texas adverse possession link is great. I read a bit more of the statute sections mentioned. Also from experience, I think Texas case law has a lot to say here. Hence I am glad the OP stated this has been sent to the HOA attorney.

-- The fact that the HOA has paid taxes on this encroached land, and presumably plats show the common area was encroached, counts for something. Perhaps mostly it counts for protracting litigation such that, as the line goes, the only winners are the two sides' attorneys.

-- I think front and center in the minds of all concerned here is the likelihood that resolving this dispute is going to cost a lot of money in attorney fees. If the HOA attorney does not bring the costs of litigation up (and competent HOA attorneys will, IMO), then the board should do so. In particular the Board should ask the HOA attorney to lay out all options and an estimate of each option's cost, including a quick settlement of some kind, to include potentially an owner's vote on selling/quitclaiming the common area.

-- Under these circumstances, with the sale of a home pending (and the failure of the sale on account of the dispute herein possibly being the cause), would the board have the authority to override owners and sell or quitclaim the land? I tend to think not.

-- If the HOA resolves this for less than a cost of $20,000 (= attorney fees plus the cost of re-platting), then I'd say the HOA Board is doing a very good job.

-- KarenN5, how many owners are in this HOA? How much revenue does the HOA receive annually from owners?

I agree with the possibility of adverse possession and talking to a lawyer. I think the HOA may well be found responsible and have to correct as the lawyer advises.

Assuming transfer of the property requires 2/3 vote of the membership, perhaps the bank would accept something less, such as a permanent easement or 99 year lease for a nominal amount.

Messy work yes. And here we are. The ACC didn’t do their job and failed to oversee the project. A certain amount of sympathy was involved at the time. The widows husband had been killed in a helicopter accident. He was a police officer.