Homeowners Encroaching on HOA Land

Karen,
Your BOD has to put a stop to this immediately. Yes, the "Gift" of a tree is wonderful. Who will pay to maintain it? When it crashes down on a roof, will it still be okay? When it is diseased, who will pay that bill? Association common property belongs to all of your owners, no one else can encroach on it. Get it surveyed and get the fences down and any other maintenances to return it back to original condition. The tree? Well, it might warrant a "special dispensation" This has started because the BOD has not done it's job or an ARC if you have one.

Thanks for the input. I worry about how to determine what situations would qualify for "special dispensation" and would prefer not making any exceptions for fear of setting precedences and having to deal with people who will argue that they should also be given "special dispentsation". Or the homeowners who will do whatever they want on HOA property and THEN "gift" it to the HOA. It seems that there will always be a small number of people who, if left to their own devices, will do whatever is best for them personally no matter the impact to the rest of the community.

If anyone has implemented "special dispensation" things like this, can you share how it was done and the results? I suspect to do it right, we'd need to clearly define what counts as "special dispensation" and be true to that definition.

Thanks again.

Karen,
One way is to first take an inventory of everything that is on the association property that does not belong there. Then if these include trees and bushes, give the owners an opportunity to remove and replant them on their own property. Give them enough time to do so.
If there are trees that have gotten too large, ask for them to be assigned to common property. You can measure them at the plant line and set a size that is considered large enough to replant. We require any trees that are to be replacement trees to be a minimum of 6 inch caliper in the middle of the trunk so that might be your size limit for removal.
NOw the real question is how did this issue arise. Was someone unhappy with this out of authority planting or did someone on the Board decide that this needed addressing? The real question is do you have some good support from other members? It really doesn't matter if this is going to make your Board unpopular. It is what they are supposed to do and that is to protect the documents from being ignored. Good luck to you

Make sure you don't let it go on too long or the HOA may loose the property through a process known as adverse possession. My aunt and uncle actually lost a ten foot wide strip of their lot through this process. From Wikipedia:

In common law, adverse possession is the process by which title to another's real property is acquired without compensation, by, as the name suggests, holding the property in a manner that conflicts with the true owner's rights for a specified period of time. Circumstances of the adverse possession determine the type of title acquired by the adverse possessor, which may be fee simple title, mineral rights, or another interest in real property.

The law of adverse possession is partly statutory and partly common law. The required period of uninterrupted possession arises out of a statutory limitation period or statute of limitations. Other elements of adverse possession are judicial constructs.

WOW! I truly appreciate the various input and feedback. This site is a grat resource for those of us trying to make our HOA Boards as effective and productive as possible. In NC, adverse possession is 7 years and we are not at that point yet. But I believe we need to deal with this ASAP - it will only get worse and the longer we drag our feet, the more instances occur AND it somewhat sets precedence.

Thanks again for the solid thoughts and ideas and support.

Michelle, What do they say---"give them an inch and they'll take a mile" You approved her fence so she thought that she had extra fencing so she might as well just keep on going. Gosh, I wonder if our society has just gotten to disreguard each others spaces that much. But you have to get that extra fencing down because it is what you are supposed to do.

I am on an Architectural Committee in Boynton Beach , Fl. We do not allow plantings in the lake easements according to our documents.
However, residents are beautifying and spreading out, especially if they built their patio to the end of their property line. So we are allowing it, and making it understood that if the Utilities company, or lake management dept need to do maintenance or improvement on that piece of land, they will be responsible for filling in, replanting sod, or whatever needs to be done so that it meets our standards, like replacing sod, etc. at their own cost.

Of course we have a littoral area of 10 ft to lake. All homeowners know where their property ends. But they want what they want, and they expand. We have gotten some of them to remove plantings, or trees, but we are short in manpower and time to keep track of almost 800 homes.The upshot is if no neighbors complain, if lake management doesn't say anything when they service the lakes and canals, we leave it alone. Eventually trees die or shrubs become over grown or people move out or up. So we keep a file for each resident, in huge file cabinets, by section and street, and when a change of ownership occurs, then new sresident must remove extra plantings. No one would dare build anything permanent on that land, they just need a little extra, especially if the builder put their patio out to the property line. They still want 2 ft to plant, protecdts the screening from weedwacking by assoc. landscaper.

KarenS10: You have not spoken of your Association having an Architectural Control Committee to receive architectural requests from homeowners wishing to make additions/changes. The large changes you have mentioned would likely fall under the authority of the Committee and Board to approve/deny.

Further, no additions by residents should be made to 'common ground' for which the association is responsible to repair/maintain. That costs money long term.

And lastly, you may want to speak with your local municipal office to learn of the initial land development plans including boundaries and what areas constitute owner boundaries vs. association common ground boundaries. The local officials could be an ally for the Board in this situation in working with a surveyor.

Karen, every single enforcement we did was one that had not been enforced before.

The majority of us who stepped forward to volunteer for the board of directors had no clue how much like babysitting it would turn out to be.

At least for myself, and I know almost every other initial board member except one, our reasons for joining the board were to encourage some sort of sense of community and camaraderie, since it was a new development and all the neighbors were "new."

Unfortunately, we did not realize that 90% of the residents don't want to be bothered, 8% want to watch over our shoulders and make sure we enforce the rules, and 2% don't want to follow any of the CC&Rs at all or don't believe they apply to them.

The only thing you can do is remember that you are not there to make friends (as nice as that would be!), you are there to maintain the integrity of your governing documents.

If something was not properly enforced before, you need to probably first communicate with the entire neighborhood that enforcement will begin as required by the documents. This will let them know that you area not there to single individuals out, you are there to maintain the integrity of your documents, and, by doing so, you plan to be fair and balanced.

Our first president was a real estate agent and really was not very interested in enforcing the CC&Rs as much as he was interested in selling some of the lots and/or homes off.

Some very key binding restrictions were ignored under his leadership, even though several board members were concerned that it would cause problems later on down the road.

Well, once the first president left the board (after 2 years), the board was a little more assertive. The only people that complained were the ones who KNEW they were in violation, they just expected that they would be able to get away with it forever and a day.

While those people definitely squawked, we conducted our business in such a fair and DOCUMENTED way, that the we received very many letters and notes of thanks for stepping up and helping to keep the governing documents from basically evaporating.

So just stick with it. Document everything you do, and remember, it's the documents, it's not personal.