Former Board member expanded yard & encroached on community property

Started by MichaelT21 • 23 replies • 354 views

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MichaelT21 (Arkansas)
Posts: 462

Posted:

This is not about my arch critic.

Last summer, one homeowner turned another homeowner in for encroaching on association owned land. We hired a surveyor and sure enough, this particular homeowner quietly started using a small portion of community property for his private use. Turns out, he was on the Board as the time the encroachment was made, and was the board representative for the architectual change committee. I've scoured meeting meetings and other historical documents and it appears that this yard expansion was done on the q.t. (secretly, quietly).

He now is squarely blaming the problem on the current HOA and on me personally for insisting the encroachment, and trying to get me off the Board so they can keep this extra bit of community property they helped themselves to. We have 50 - 100 homeowners whose yards back up to community property and I am sure that many of them would like to expand their backyards in the same way.

Wondering if anyone has any comments? To be, this sure feels like a previous director abused their position to give themeselves a private benefit not available to everyone in the community.

MelissaP1 (Alabama)
Posts: 13,836

Posted:

At this point it matter not if they are or were a board member. They are now called "Member". How they got the land has no bearing. What has bearing is getting the land back if the HOA wants it. Right now he is putting the blame not on himself but the one's who blame him.

So follow the law that applies to this situation. This case may be a "Real estate" attorney area. Otherwise most HOA issues don't involve Real estate...

Former HOA President

SheliaH (Indiana)
Posts: 6,964

Posted:

Send a violation letter and notify the homeowner of his/her appeal rights, then pit your information against his. Or, turn this over to your association attorney demanding that he correct the problem immediately at his expense. If he squawks, file a lawsuit and see who wins.

Do you REALLY need someone to spell this out for you??? Or did some of these observations come out of your behind and aren't based on fact? To wit- if you think all of this was done on the day, you'd better be able to prove it.

Three years on the board and you still don't seem to want to think things through....I'm beginning to think your arch rival really does have some legitimate issues with your approach to everything. You'd better step back and take a long look at yourself, othereise,otherwise, may find yourself on the outside looking in.

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

MichaelT21 (Arkansas)
Posts: 462

Posted:

Quote:

Posted By SheliaH on 10/16/2022 7:30 AM
Send a violation letter and notify the homeowner of his/her appeal rights, then pit your information against his. Or, turn this over to your association attorney demanding that he correct the problem immediately at his expense. If he squawks, file a lawsuit and see who wins.

Do you REALLY need someone to spell this out for you??? Or did some of these observations come out of your behind and aren't based on fact? To wit- if you think all of this was done on the day, you'd better be able to prove it.

Three years on the board and you still don't seem to want to think things through....I'm beginning to think your arch rival really does have some legitimate issues with your approach to everything. You'd better step back and take a long look at yourself, othereise,otherwise, may find yourself on the outside looking in.

Shelia,

I assure you I've thought this thorough. A detailed and lengthy post about the whole situation would be far too long for folks to read, so I excerpted the portion about the former board member taking the action to encroach on association land while on the Board. It does seem like abuse of his power, as a person who is on the Board can't really say that they are ignorant of HOA policies.

AugustinD
Posts: 1,027

Posted:

Quote:

I agree.

I do not see the relevance of identifying whether this falls into some sort of nebulous, likely having no legal teeth, "abuse of power" category.

DavidG45 (Delaware)
Posts: 994

Posted:

What is the nature of the encroachment?

How does the fact that they were on the board at the time the violation occurred ha e anything to do with the situation right now?

JohnT38 (South Carolina)
Posts: 1,631

Posted:

Quote:

Posted By MichaelT21 on 10/16/2022 7:17 AM
This is not about my arch critic.

Last summer, one homeowner turned another homeowner in for encroaching on association owned land. We hired a surveyor and sure enough, this particular homeowner quietly started using a small portion of community property for his private use. Turns out, he was on the Board as the time the encroachment was made, and was the board representative for the architectual change committee. I've scoured meeting meetings and other historical documents and it appears that this yard expansion was done on the q.t. (secretly, quietly).

He now is squarely blaming the problem on the current HOA and on me personally for insisting the encroachment, and trying to get me off the Board so they can keep this extra bit of community property they helped themselves to. We have 50 - 100 homeowners whose yards back up to community property and I am sure that many of them would like to expand their backyards in the same way.

Wondering if anyone has any comments? To be, this sure feels like a previous director abused their position to give themeselves a private benefit not available to everyone in the community.

There is nothing to discuss here. You either enforce your covenants or you don't. What is worth discussing is why haven't you?

JohnC46 (South Carolina)
Posts: 14,265

Posted:

Quote:

Posted By JohnT38 on 10/16/2022 8:26 AM

There is nothing to discuss here. You either enforce your covenants or you don't. What is worth discussing is why haven't you?

I agree and a good question.

MaxB4
Posts: 3,513

Posted:

Another SFQ.

TimB4 (Tennessee)
Posts: 21,062

Posted:

Hasn't this been discussed already?

See:

Subject: Locating property lines

MichaelT21 (Arkansas)
Posts: 462

Posted:

Quote:

Posted By TimB4 on 10/16/2022 4:52 PM
Hasn't this been discussed already?

See:

Subject: Locating property lines

Good memory. Other Board members thought we needed to hire a surveyor, which we did and confirmed the encroachment. We have spent the last 6 months sending compliance letters and dealing with hearings. Homeowner has decided his encroachment is an HOA Board problem, and me specifically, and is going door to door with petitions in hand to try to keep his yard including the space that is on association property.

He now wants to buy association owned property for us. Well, not "want" but is insisting that he be granted the right to the underlying property. He has retained an attorney to "help him" so he says. I am suggesting he talk to the city to find out whether the city would allow such a boundary line adjustment.

While I don't mind taking a hard line on situations, I don't care for people going door to door to try to blast me for what I am doing as Board president. I would like to shift the blame to the City who will certainly deny what he is asking.

If they don't deny it, I have said that it would require a vote of homeowners, and am hoping that homeowners see value in association owned land and will vote it down.

AugustinD
Posts: 1,027

Posted:

Quote:

I would like to shift the blame to the City who will certainly deny what he is asking.

Why would the city have any legal say over this?

I would expect all the city would say is that, if the HOA wants to re-plat, have at it.

MichaelT21 (Arkansas)
Posts: 462

Posted:

Quote:

Posted By AugustinD on 10/16/2022 5:12 PM

I would like to shift the blame to the City who will certainly deny what he is asking.

Why would the city have any legal say over this?

I would expect all the city would say is that, if the HOA wants to re-plat, have at it.

The tracts of land deeded to the HOA are sensitive area tracts due to the fact they are on steep slopes that were designed by engineers, and required to be maintained by the HOA per the plat map.

I have contacted the city who says they are a stakeholder in any boundary line adjustment and says that their recommendation "may be a no" on any boundary line adjustment proposed.

Development in my particular area of Washington is under strong government control, and it seems the government gets a big say in any land use decision in my area.

AugustinD
Posts: 1,027

Posted:

I see.

With regard to a hypotehtical, I would not count on the city to commit to anything. After all, if parties X and Y come to the city saying X wants to buy such-and-such strip of land from Y, and both want the deal to go through, I cannot see the city saying, "Um, but we think X is too incompetent to maintain the land. So we will not approve the re-plat."

This little guy wants to be a burr under your saddle. Respectfully, I think you're letting him.

KerryL1 (California)
Posts: 14,550

Posted:

Sniffing the upcoming Jan. election, it seems to me, has made Michael very nervous. I think his critics, which seem to be two former directors sense this. they are starting to campaign.

Have you not received an opinion from your HOA attorney yet, Michael? are you able to cite to other owners the CC&R which presumable states the HOA may not deed any common area to others or whatever the language is--without an vote by Owners?

MichaelT21 (Arkansas)
Posts: 462

Posted:

Kerry,

I've read through our CC&Rs (93 pages!) about 10x times. I am unclear on what the process is to deed the sensitive area tracts to homeowners. I honestly don't know! They are slopes and not recreational land. I assume there is a reason that they were deeded to the HOA and not given to homeowners, as bigger yard would have benefitted the developer in terms of value of lots. Bigger lots = more money for the developer.

But I'm limited on my knowledge of real estate law.

We have not talked with the HOA attorney because they charge us $375/hr, and I don't want to spend a bunch of association funds just to argue with a homeowner. If we are sued by the homoewner, we will alert the HOA attorney as well as our insurance company. Until then, our compliance letter stands.

I do think the city needs to weigh in on whether or not they would approve of a land transfer. I am not against transferring the land if all of the stakeholders are fine with it. I don't think it's likey the right decision but don't know legally, planning-wise, or geotechnically-wise it's the wrong decision.

Yes, I'm a bit nervous about a potential campaign against me. I sort of like doing the HOA thing and especially don't think I should get voted out due to a compliance issue that is an open and obvious violation. But I'm also a bit tired, and don't want to have a target on my back about the only one who cares about rule enforcement.

JohnT38 (South Carolina)
Posts: 1,631

Posted:

Quote:

Posted By AugustinD on 10/16/2022 5:35 PM
I see.

With regard to a hypotehtical, I would not count on the city to commit to anything. After all, if parties X and Y come to the city saying X wants to buy such-and-such strip of land from Y, and both want the deal to go through, I cannot see the city saying, "Um, but we think X is too incompetent to maintain the land. So we will not approve the re-plat."

This little guy wants to be a burr under your saddle. Respectfully, I think you're letting him.

This is an excellent point. Also it has been at least 5 months since Michael sent the homeowner a letter asking him to move the trees that were planted on HOA property. It's time for the Board to decide how they want to handle this and deal with it.

Either get a lawyers advice or let the homeowners vote on the issue but don't sit around and twiddle your thumbs and do nothing.

WendyM5 (North Carolina)
Posts: 1,522

Posted:

Quote:

Posted By MichaelT21 on 10/16/2022 7:17 AM
We have 50 - 100 homeowners whose yards back up to community property and I am sure that many of them would like to expand their backyards in the same way.

sounds like a huge fund raising potential. rent or sell the land and then you can lower the dues and make everyone happy. yeah crazy but it just might work.

vis ta vie

MichaelT21 (Arkansas)
Posts: 462

Posted:

Quote:

Posted By WendyM5 on 10/17/2022 5:25 AM

Posted By MichaelT21 on 10/16/2022 7:17 AM
We have 50 - 100 homeowners whose yards back up to community property and I am sure that many of them would like to expand their backyards in the same way.

sounds like a huge fund raising potential. rent or sell the land and then you can lower the dues and make everyone happy. yeah crazy but it just might work.

Yeah, surprising the developer didn't think of the huge revenue potential when they developed the subdivision. Larger lots would have clearly sold for more money and resulted in more profit for the developers.

(I'm writing that tongue in cheek - I am confident that the reason the land was given to the HOA rather than sold to homeowners is because of city/county development requirements and restrictions. It was required to set aside the sensitive areas in order for the county to approve the plat map for our community. I have discussed with the city and they say that all development restrictions and requirements that were originally in force when the community was platted are still in force today.)

TimB4 (Tennessee)
Posts: 21,062

Posted:

Quote:

Posted By MichaelT21 on 10/16/2022 6:16 PM

But I'm limited on my knowledge of real estate law.

We have not talked with the HOA attorney because they charge us $375/hr, and I don't want to spend a bunch of association funds just to argue with a homeowner. If we are sued by the homoewner, we will alert the HOA attorney as well as our insurance company. Until then, our compliance letter stands.

After 10 years of no enforcement (i.e. legal action - not simply a demand letter), the owner can claim adverse possession in Washington State.

Therefore, I think it would be advantageous to spend the money and talk with an attorney.

Quote:

Posted By MichaelT21 on 10/16/2022 6:16 PM

I do think the city needs to weigh in on whether or not they would approve of a land transfer. I am not against transferring the land if all of the stakeholders are fine with it. I don't think it's likey the right decision but don't know legally, planning-wise, or geotechnically-wise it's the wrong decision.

The city could care less on the transfer of the land.
File the paperwork, pay the fees, it's done.

However, the PLAT may limit what the land could be used for.

AugustinD
Posts: 1,027

Posted:

Quote:

Posted By MichaelT21 on 10/17/2022 6:40 AM
I am confident that the reason the land was given to the HOA rather than sold to homeowners is because of city/county development requirements and restrictions. It was required to set aside the sensitive areas in order for the county to approve the plat map for our community. I have discussed with the city and they say that all development restrictions and requirements that were originally in force when the community was platted are still in force today.)

Ah hah. Now we may be talking. Perhaps there is an "Open Space" requirement, meaning a certain fraction of the land is to be maintained in xyz park-like condition. Which it seems to me would lessen the chances of the rogue owner/HOA prevailing in an application to the city to re-plat.

MichaelT21 (Arkansas)
Posts: 462

Posted:

Regarding adverse possession, in Washington State, you cannot claim adverse possession on HOA open space / greenbelt property. The state legislature eliminated that ability a few years back.

Regardless, the encroachment was done about 5 years ago.

TimB4 (Tennessee)
Posts: 21,062

Posted:

Quote:

Posted By MichaelT21 on 10/17/2022 7:00 AM
Regarding adverse possession, in Washington State, you cannot claim adverse possession on HOA open space / greenbelt property. The state legislature eliminated that ability a few years back.

Regardless, the encroachment was done about 5 years ago.

I took a look (would have been nice if you provided) and per RCW 36.70A.165 the area would have to be plated as a green belt or open space.

Hence, You need to check the PLAT.

MichaelT21 (Arkansas)
Posts: 462

Posted:

In the case "Close vs Yarrow Bay", the courts provide an extensive discussion on how they interpret the phrase "greenbelt or open space." They say:

"The GMA does not define greenbelt or open space, and when a statute does not define a term, we utilize the dictionary definition to inform the statute's plain meaning...The dictionary definition of "greenbelt" is "a belt of parkways, parks, or farmlands that encircles a town or community." ... And the dictionary defines "park" as "a tract of land maintained by a city or town as a place of beauty or of public recreation" or an area "maintained in its natural state for public use."... Either definition aptly applies to the common areas behind the Closes' lot.

I'll leave the intepretation of this particular caselaw as an exercise to the reader.

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