EMINENT DOMAIN???

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.

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

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.

. . . 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,

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.