Homeowner developed and built structure on community land

Started by JaneD7 • 5 replies • 228 views

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JaneD7 (Georgia)
Posts: 2

Posted:

Hi Everyone! Hopefully someone can help me. In my Georgia neighborhood a homeowner cut down a swath of large trees, built a retaining wall, installed landscaping and patio furniture-all on community land. They have plans to build a structure on it as well.

This was brought to the POA's attention several times. The officers failed to acknowledge the issue. Yet they continue to focus on minor issues such as garbage can placement on a public street.

What if any recourse do the rest of the homeowners have?
Can the homeowner be help accountable even if the POA continues to ignore the issue?
Can a case be made for selective enforcement?
Can the trespass be walked back?

TIA.

MelissaP1 (Alabama)
Posts: 13,836

Posted:

Hold your roll. You and your neighbors are the POA. So what does your restrictions spell out? What enforcement options are available? What is the approval process? Are you still developer owned or owner owned?

Former HOA President

JoeN6 (Virginia)
Posts: 94

Posted:

Sounds like they improved community property for the community to use

TimB4 (Tennessee)
Posts: 21,059

Posted:

The Association should be concerned about Adverse Possession.

Keep in mind that the Association is not the only one with enforcement rights. Any owner can enforce the covenants (via the courts).

If there was no previous approval by the Association, any board can enforce.
Based on what you have said, it will likely require legal action and a court case (time, money and energy).
It's possible the board may have to impose special assessments to pay legal expenses.

If there was previous approval, then the Association would likely not have a case as the board can usually do as they desire with common area. This varies by State and by governing documents.

One thing homeowners can do is make a complaint to the zoning board and bring the County/City into the issue.
Did they have permits?
Did the permits approve work only on owned property?
have PLATs been changed to show a sale or change in common area?
Tax base for larger plot?

The complaint may or may not be anonymous.

ElleN (Idaho)
Posts: 4,420

Posted:

Quote:

Posted By JaneD7 on 11/06/2023 1:16 PM
Hi Everyone! Hopefully someone can help me. In my Georgia neighborhood a homeowner cut down a swath of large trees, built a retaining wall, installed landscaping and patio furniture-all on community land. They have plans to build a structure on it as well.

This was brought to the POA's attention several times. The officers failed to acknowledge the issue. Yet they continue to focus on minor issues such as garbage can placement on a public street.

What if any recourse do the rest of the homeowners have?

Competent HOA attorneys read boards the riot act when the board ignores an owner using common area as you describe. The risk of liability is huge.

Call this person John Idgit. Owners can send Idgit demand letters, citing the covenants being violated, and asking Idgit to restore the land to the way it was.

Owners should send the board letters demanding the board enforce the covenant.

Quote:

Posted By JaneD7 on 11/06/2023 1:16 PM
Can the homeowner be help accountable even if the POA continues to ignore the issue?

Yes. Covenants are contractual terms. Anyone subject to the covenants can enforce them. The covenants should have a clause saying as much.

Quote:

Posted By JaneD7 on 11/06/2023 1:16 PM
Can a case be made for selective enforcement?

Selective enforcement occurs when the board enforces covenant X against Jones but does not enforce covenant X against Smith. This is not what is happening here.

Quote:

Posted By JaneD7 on 11/06/2023 1:16 PM
Can the trespass be walked back?

What does "walked back" mean?

It takes many years for a person trespassing on another's land to be entitled to claim the land as his own. Other requirements must also be met.

TerriS6 (California)
Posts: 3,284

Posted:

Quote:

Your governing documents should address how exclusive use of a common area is granted. Also, a member can be assessed for causing damage to the common area. The homeowners have the right to enforce the covenants themselves. Homeowner and association can be held accountable. Selective enforcement is actionable. Your trespass question is unclear.

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