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GlenL
(Ohio)
Posts:1466
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| 08/11/2008 12:57 AM |
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Posted By WendyP on 08/06/2008 5:40 PM
Years ago, a fence encroaching on our common area was built by a homeowner. (It is not clear whether the Board at the time approved the fence or whether they did not challenge the homeowner.) That fence was built over the main sprinkler line for that section of the property. Earlier this summer, that line burst, sending a lot of water into the crawl space of that home plus the two neighboring units. The fence (and deck within the fence) were demolished so that the pipe could be repaired. The homeowner is requesting that the HOA pay the bills for cleanup and for reconstruction of the fence and deck. Since the pipe was within the fenced-in area, is the HOA responsible?
Wendy you need to contact your HOA attorney and ask him/her these questions. The HOA is in all likelihood responsible for the flooding damages and the sooner it makes reparations the better either through the insurance or its own funds. The fence and the deck are another matter; if they are both build on the common area, then you defiantly need to get an attorney involved. While you don't specify the exact length of time that the fence and deck have been there, Idaho has a relatively short period of time where a person can claim Adverse Possession of the property.
In Idaho, the duration of such possession is five (5) years. The person claiming title by adverse possession must pay taxes and assessments on real estate during the time of adverse possession. The claimant must enclose the real estate, cultivate it, make improvements on it, or otherwise use it for its ordinary and actual purpose. Idaho Code §5-208 through 210.
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DwightT
(Idaho)
Posts:483
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| 08/11/2008 10:11 AM |
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Posted By GlenL on 08/11/2008 12:57 AM
In Idaho, the duration of such possession is five (5) years. The person claiming title by adverse possession must pay taxes and assessments on real estate during the time of adverse possession. The claimant must enclose the real estate, cultivate it, make improvements on it, or otherwise use it for its ordinary and actual purpose. Idaho Code §5-208 through 210.
Glen - where did you get 5 years? I.C. 5-210 states 20 years, and the other limitations in Title 5 Chapter 2 (5-202 - 5-207) also state 20 years.
Also, 5-208 and 5-210 both state that adverse possession is NOT established if a written instrument is recorded with the county and that instrument states that possession was not intended to define boundaries. If I'm reading that correctly, that means that a BOD could grant a homeowner permission to use the property as has been described but still retain title to that property by recording the agreement with the county.
I agree though that Wendy needs to contact a real-estate attorney to discuss this.
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GlenL
(Ohio)
Posts:1466
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| 08/11/2008 1:13 PM |
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Dwight it's from this website: http://www.houselist.com/forms/que/advposs.htm
I thought that I'd included the address in my original post.
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DwightT
(Idaho)
Posts:483
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| 08/11/2008 1:22 PM |
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Guess I should post the link for my source also then:
http://www3.state.id.us/idstat/TOC/05002KTOC.html
This is the State of Idaho website for Idaho Statutes. I'm fairly certain that it is current. Since yours was copyright 2002, I suspect that it's out of date although I have no idea when the legislature made changes to Title 5.
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cpoulin
(Colorado)
Posts:35
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| 08/11/2008 6:36 PM |
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It is one thing to be neighborly, but when it comes to conducting business of the HOA legalities are necessary. When an owner buys a townhome, condo, home, etc. in a covenanted development, the governing (recorded) documents - also known as Declaration, CCR's, etc. - are a binding contract with all owners.
If in the documents it states "no further division of the common elements", then that is exactly what it means. If the board gave permission or not, there should have been no further division of the property.
If the fence and deck were ruined because they were on the common area, the owner wanting the repairs needs to show proof of a deed for the land their fence and deck sat on. Unless the owner of the ruined deck and fence can provide a deed, that is just a risk they chose to take. The land still belongs to all the owners as a common area designated on the plat map.
So please don't be so friendly and quick to allow owners use of common areas, since the BOD has no authority to allow one owner to use the commone area without the approval of a revision of the CCR(declaration, covenants, etc.) by 60% (or as designated in the legal documents)of the home owners. All the home owners have to pay for any insurance on the common elements and who will take the hit for any premium increase??? Repair the pipes in the common area and talk to a lawyer about possibly holding the person responsible for damages to the pipes from the weight of the fence and deck that shouldn't have been on the common elements. They should also be held responsible for damage to the other homeowners damaged property. |
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BradP
(Kansas)
Posts:1742
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| 08/12/2008 6:43 AM |
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Posted By cpoulin on 08/11/2008 6:36 PM
Repair the pipes in the common area and talk to a lawyer about possibly holding the person responsible for damages to the pipes from the weight of the fence and deck that shouldn't have been on the common elements. They should also be held responsible for damage to the other homeowners damaged property.
Unless they drove a stake through the pipe that argument holds no water (no pun intended)...I have had 10,000 pound plus vehicles drive over ground that had irrigation pipes under it on a routine basis and didn't cause issues. Pipes break for a variety of reasons. |
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