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Subject: EMINENT DOMAIN???

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ClaudeV
(Florida)

Posts:84

07/09/2008 9:54 AM
It seems that one or two of our members have decided to try and "take" HOA common areas between their lots and the shoreline of one of our retention ponds using an "eminent domain" tactic. We had a BOD meeting last evening and this one individual stated his intention to have an attorney apply for this strip of land behind his home. The claim is that he took care of it for 12 years so it should be HIS and included into his lot survey. He made a request of the BOD last evening to save time and money would we, the BOD, just "sign it over" to him. MY reply to him was, "The Board ain't gonna do that!" (Otherwise, get your lawyer!) This entire issue has come about over a couple of residents that do NOT want members standing on the common area behind their homes and fishing in the pond. The BOD had the boundaries surveyed a few weeks ago since the one owner claimed she owned it all the way to the water's edge. The survey clearly shows that she does NOT own the land to the water and additionally, she had dug out the common area, claiming it "improved safety" due to snakes etc, and as a result about 20 to 25 ft of the line is INDEED the boundary line. BECAUSE she had it dug out! Bottomline: The BOD passed a "safety edict" that fishing is allowed around the entire pond from dawn to dusk. (No night fishing.) There is already a covenant for no swimming or boating. Otherwise, everything remains the same. The problem NOW is, the current BOD, minus ME, doesn't want to have this woman repair the common area back to a state that allows people a walkway past her home around the pond. They feel that the past BOD President, since he knew they were diggiing, didn't do anything last year and that the "problem" was left to the new BOD to act upon. Additionally she is blocking the common area in total in one spot with a small dock that is entirely on the common area. I like serving my community. I have a good sense of duty and responsibility to the members, whom ARE the HOA, not just the BOD. It is difficult to get anyone to run for the BOD. Everyone wants to gripe but no one wants to STEP UP and take an active role, except to gripe, of course! I sent an email to the BOD Prez this morning and informed her that if we couldn't act as a "unified BOD" and enforce the CC&R's as they are, then she could expect my resignation. I cannot, in good conscience, continue to serve as a volunteer when the BOD majority has no "will" to do their duty to the membership. Any thoughts? Suggestions? They would be appreciated. This is a small, Florida HOA for a manufactured home community. 86 owners.

JohnK3
(Pennsylvania)

Posts:463

07/09/2008 10:17 AM
Claude, Eminent Domain is something the government does to acquire private land. This problem falls into the realm of Adverse Possession, which is no doubt defined in your state laws or case law. Typically, there is a 7 year period for active AP, 20 years for passive AP. It can/will get complicated, though the woman may have an arguable, though not necessarily winning, position.

GlenL
(Ohio)

Posts:1376

07/09/2008 12:06 PM
Claude I understand your frustration but resigning isn't the answer. You can accomplish more on the Board than off of it. Remind the BOD they have a fiduciary duty to act in the best interests of the WHOLE community not one or two homeowners and that they can be sued personally for failing to protect it. Most D&O insurance policies do not protect against willful negligence and they could find themselves on the hook personally for any damages awarded and the cost to defend themselves. In all matters relating to this make sure that your votes are clearly reflected in the minutes to protect yourself.

SusanW1
(Michigan)

Posts:2178

07/09/2008 4:10 PM
We have a similar issue in our subdivision. There are several 30 ft. wide canal- front strips of land (outlots) that belong to the HOA throughout the subdivision. They originally were there because up until the 1980's, we had our own fire department and the trucks would back up to the canals and pump their water from them. Township took over fire protection shortly afterwards. The HOA MUST maintain these lots. The landscape crew comes around and mows them, even if the homeowners next to the lots have mowed them. So the HOA can go on record as having not "abandoned" the pieces of properties. People do come down and fish there once in a great while. Otheres have been assimilated into the landscape of the common boundary homeowners. The Board has not done a good job in defining the properties and taking care of them. Now, just this year, there is a group of non-canal front owners who want "lake access" thru these outlots. What a mess!!

ClaudeV
(Florida)

Posts:84

07/09/2008 6:00 PM
Posted By GlenL on 07/09/2008 12:06 PM Claude I understand your frustration but resigning isn't the answer. You can accomplish more on the Board than off of it. Remind the BOD they have a fiduciary duty to act in the best interests of the WHOLE community not one or two homeowners and that they can be sued personally for failing to protect it. Most D&O insurance policies do not protect against willful negligence and they could find themselves on the hook personally for any damages awarded and the cost to defend themselves. In all matters relating to this make sure that your votes are clearly reflected in the minutes to protect yourself. Thanks for the morale boost! I have written the Prez and laid out my position: Either the Board is united on these issues or not. If not, I will resign. She wrote back after conferring with the other BOD members and they have agreed to follow the CC&R's and issue letters of violation. Our FIRST letter will be a "request", not an official violation letter. If it is ignored or challenged then we will issue an official letter of violation, certified mail, signature required. The member will then have 30 days to rectify the issues or the BOD will hire someone to do it and then file an assessment against her home. She may pay, she may not, but one thing is for certain, she will NOT get a clear title when she sells unless the assessments are paid. I'm sticking around for now. BTW: I am a heart patient. I tire easily and my heart only functions at 35%. I cannot, and will not, allow a few jerks to get under my skin. If they ever do, my resignation will be for my own health preservation as much as an ethical statement. And, the guy threatening to use a lawyer? He and his wife just got off of unemployment, they do not have the financial where with all, IMHO, to hire an attorney anyway. I believe he is bluffing trying to "scare" the BOD into caving in to him. I told him last evening at our meeting: "It ain't gonna happen " LOL

MicheleD
(Kentucky)

Posts:1710

07/09/2008 7:01 PM
Regarding adverse possession, please check your documents. Our governing docs do not allow for ANY transfer of ownership of ANY of our common area. Period. So even if adverse possession were attempted, it would be a huge uphill battle for the homeowner. So, as usual, a good place to start is to review your governing documents on the transferability of your common area.

RobertR1
(South Carolina)

Posts:2154

07/10/2008 12:28 AM
In my opinion, I believe that most of this problem could be eliminated or clarified with the Board posting a legal notice in the local paper with a statment that details the establishment of the HOA property lines in question. This would force or require any individual to seek clarification by the courts if they had a question. The fact that the members of the association were given free passge over this property seems to me to establish ownership and would dissprove abandonment. I also think you have to prove the original property owner has to make some positive effect he is abandoning the property. If the property taxes are being paid in full and passage is allowed for HOA members and restricted to other, that would indicate usage. I also don't believe Immenent (sic) Domain) is the correct action for this kind of effect.

SusanW1
(Michigan)

Posts:2178

07/10/2008 6:04 AM
Property taxes are waived for not-for-profits, at least ours are.

MicheleD
(Kentucky)

Posts:1710

07/10/2008 6:46 AM
Posted By SusanW1 on 07/10/2008 6:04 AM Property taxes are waived for not-for-profits, at least ours are. . . . which is another obstacle for a homeowner claiming adverse possession. But, since it's not entirely impossible, it's also another reason why the HOA needs to be diligent about encroachment.

ClaudeV
(Florida)

Posts:84

07/10/2008 1:08 PM
Thanks for the great inputs!!! Our BOD's position, (and mine since I'm on the BOD), is that the property HAS been maintained by the HOA and has NOT been abandoned in any way, shape or form. The resident in question has a history of making a lot of "noise" but rarely following through on anything. We all doubt if they have the financial means to hire an attorney in the first place. IF they DO manage to obtain legal help, the HOA has sufficient funds to counter the attempt if it goes to court and you can BET that we will request re-payment of our HOA funds if they LOSE the action. We may not get it, but we aren't above some "scare tactics" ourselves! LOL ALL of this riggormaroar over ONE owner not wanting people to fish behind her home on the common area. Good grief Charlie Brown!!!

EllenS1
(Florida)

Posts:353

07/10/2008 4:37 PM
ClaudeV, I hope you can convince the board to do what is right. As far as a threat of a lawsuit...it's just that and as you said most probably a bluff. IF you do receive anything from this owner's attorney just have your attorney respond and if the owner contacts the board after that tell him to have his attorney contact your attorney who is handling this for the association. When he sees the billable hours mounting up I'm sure he will decide against suing.

DonnaS
(Tennessee)

Posts:2839

07/10/2008 6:38 PM
Claude, I am from Florida and I know for a fact that there is a designated amount of footage around any and all ponds and waterbodys called "LITTORALS" This area is maintained by the HOAs but they normally belong to and are monitored by the County that they are in. This is considered natural or wildlife area and they are NOT to be altered in any way, except to remove invasive species of plants. Somehow your County could have found out about her altering the area and they could or would have fined your HOA for this resident changing the plants and shoreline. It does not belong to her so if she thinks that she can win in a court, God bless her and let her waste her money. If you have access to your original plat map, check out how the pond area is designated but for now, I would not let your County know in case they want to come and check on this. By the way, what County are you in?

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