HOA Master Association Property

Hey all-

Wondering if anyone knows if I have any recourse here, with the private path behind my house, and what that could potentially look like. I live in the State of Illinois.

When I purchased my home, I had concerns about a path cutting through my backyard- if it was a public path, there was no way we were going to purchase the home. However, after reading through the bylaws, and looking at the plat of survey, it became clear the path was a private path, exclusive to the members of our community only. See below clause directly out of our bylaws stating our property has no dedication to public use:

"3.6 No Dedication to Public Use. Except as otherwise expressly provided in this Declaration, nothing contained in this Declaration shall be construed or be deemed to constitute a dedication, express or implied, of any part of the Premises to or for any public use or purpose whatsoever."

So, after confirming this path was indeed private, we executed on the purchase of the home. However, after having lived here for five years, and trying everything to contain and control access, nothing is working.

We live in a community that, at one time, had nothing surrounding it approximately 30 years ago. Since then, neighboring communities have been built, and commercial properties established nearby- malls, car dealerships, mechanic shops, coffee shops, etc. Needless to say, anyone with a phone can see there is a nice path going around an approximate 4-acre pond behind 12 of 232 houses here, which leads to different paths that fork off through two different nature paths. We have put up no trespassing signs that state it's exclusivity to our Members only. And we have notified neighboring HOA's to stay off of our private property. However, people just continue to trespass or use the area at the back of my house as a recreational area, without regard for any posted signs.

To make matters worse, I can't install a fence, and the shrubs we have placed against the path, just draw in people with domestic pets and children. They cross over a plastic chain and posts I have installed along my side of the walkway, and literally play in my backyard (it's about a 1 acre yard), or let their dogs run through my shrubs and defecate on my lawn. Generally, the people doing this, are all from outside this community..

I have asked our Association to start enforcing trespass. I have sent a drone up directly over my property and have followed people on video recording to their houses not within this Association. I have produced all of that evidence to my Association, along with their addresses showing that trespass continues to exist, daily. My Master Association refuses to enforce the trespass, and since I am a member, I have no authority to sign a complaint against said trespassers.

So, I guess the question is, what do we do next and do we have any recourse whatsoever? My bylaws say that no member should be placed at a disadvantage compared to others. And, well, all I want is the trespassers to go away. They are not, and we have a growing chorus of members on my side of the pond who want the path removed in its entirety since there is no way to control access. And since our Master will simply not enforce the trespass, I don't know what to do anymore to compel them to fix the issue.

Anthony,

You can enforce the trespassing on your property.

Contact the police and see what has to be done. Often there are specifics on signage color and posting heights.

I would caution using a drone to follow people, as that could be interpreted as stalking.

Thanks! I doubt there would be counter suit of prescriptive easement. I'd have to look into it, but I assume there has to be some stipulations surrounding this. One of which would most likely be time. I know the people trespassing are relatively new to the surrounding communities. And the signage which says no trespassing and states the Association which are allowed to be there. Not clear how they would have much of a case since we pay for all the upkeep. Blacktopping, paving, landscaping, tree care, etc. We have not abandoned the property and very much maintain it.

The board is required to abate a nuisance. Would be interesting to read what your Declaration says about that.

In California, recreational use of private property can never ripen into a prescriptive easement (thank you, Peter Behr).

In California it can never ripen into a public prescriptive easement. Use of private property "for recreational purposes" (including accessing areas open to the public for recreation) can ripen into a private prescriptive easement.

Your "cited" case law is binding in Oregon and nowhere else.

Your statement is false regarding prescriptive easements CA Civ Code sec 1008.

The Oregon case is U.S. Supreme Court decision which was cited so the poster can decide for himself if anything will help him, e.g. the right to exclude others being a primary property right.

People can look up Civ Code 1008 and see your statement is highly inaccurate.

Civil Code 1009 is applicable as well.No, it is not.

None of what you posted from the case law has relevance here.

If you post something that changes my mind, I will respond further. Else my statements stand.

Having personal experience with the issues of excluding recreational users from private property, and from acquiring any prescriptive easements, what I wrote was to address an issue brought up. Who are you to determine which posts are relevant or not.

That would vary association to association based on wording within the governing documents.

Mostly, the Board and the Member have rights to enforce but rarely a requirement to enforce.

That is not what I read.

You made two statements:
1) The board is required to abate
2) You would like to see what the declaration had to say about it.

Terri,

I'm not going down the rabbit hole of what was said, how it was said, etc.

I made a statement based on what you posted.
You questioned me about that statement.
I replied with my reasoning on why I made that statement.

Everyone is free to determine for themselves what the meaning of something was or wasn't.