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Subject: Adverse Posession
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GenoS
(Florida)

Posts:3123


07/04/2019 3:13 PM  
My HOA was originally created to govern a subdivision that was platted in 1989. The 100 lots were drawn up so that a homeowner would own only their building and the land underneath it. Think of a sheet of dough with the lots cut out of it using a cookie cutter whose shape is exactly that of the foundations. The CC&Rs say at the outset that the plan was for the developer to develop common areas and, "... single family residences (hereinafter sometimes collectively referred to as "lots" or "residences", all words having the same meaning and being used interchangeably within this document)."

Equating a "lot" with a "residence" seems absurd but it makes sense if every lot is, in fact, completely covered with a residence. Everything outside the lot boundaries is common property. The CC&Rs were written with that in mind. They do not envision any case where a homeowner would own anything except what was on his lot, i.e. a residence.

Fast forward 4 years and the original developer bailed out after building only 50 of the planned 100 homes. A local homebuilder entered into an agreement with the original developer and the HOA (still controlled by the original developer) whereby the remaining 50 unimproved lots would be bought by the homebuilder looking to build homes. The homebuilder would acquire the lots and be recognized only as a homebuilder and not inherit any status as "subsequent developer" or "declarant". In turn the original developer would turn over control of the HOA to the homeowners.

Fast forward another 2 years and the homebuilder was building homes on some lots that were smaller in size than what the lot size on the plat called for. There probably should have been a re-plat but that was never done. So the situation became one in which several dozen lots had homes on them PLUS an additional amount of land outside of the original foundations' boundaries but within the legal boundaries of the lots.

Technically, the owners of those lots also own that "extra" land. It comes out to about 800 ft. sq. per lot where it exists. Nobody paid much attention to the situation and the conventional wisdom among the homeowners remained "you only own your home and the land under it," even though that wasn't univesally true throughout the subdivision.

Our documents don't adequately address the situation. It was never intended that ANY lot consist of anything other than the residence. The documents refer to the common property and the residences. There have never been any provisions for land that might exist outside of a home that's NOT also common property.

Since the beginning, the HOA has always maintained all of the land in the subdivision as if it was common property. That includes cutting the grass and trimming the trees, shrubs and bushes, not to mention maintaining the irrigation system.

In the last few years we've had an influx of new homeowners as the original ones depart. Several of them are savvy enough to recognize that there's a 20 foot strip in back of their homes that they own. They want to build concrete patios and there's nothing in our documents that says they can't other than the general requirement in the CC&Rs that calls for "harmony" and "common characteristics of the neighborhood" for any alterations to the RESIDENCES. If we rely on LOT = RESIDENCE, which is stated in the CC&Rs, then I think that's a very iffy proposition. In a dispute I think most courts will construe against the drafter of the language, and the HOA would lose that argument.

The HOA has been maintaining those areas as if they were already common property for well over 20 years already. We're evaluating whether to do a significant re-write of our governing documents to address this situation (very expensive) or seek to obtain title to what amounts to 0.9 acres of land through Adverse Posession claims (cost unknown). We estimate that, even if there was no opposition from the affected homeowners, at minimum a survey would be required for each lot and we'd be looking at a $15,000 expense (50 times 300) to start. In my opinion there's a good chance it wouldn't be worth doing. But many of us think we should do something to gain control over the "extra land" before the problem becomes large. That is the way the original developer designed things to be and that desire is expressed in several places in the governing documents. From the day of turnover in 1994 the homeowner-controlled boards here have been bad. They should have demanded that the new homebuilder build in conformance with the plat or pay for a replat that would have taken their own proposed building foundations into account so that there would be no "extra land" to worry about. (30 years later)

Is there any liklihood that the HOA could win an action for Adverse Posession against the homes with the "extra land"? Does anyone have any experience with anything similar?

Thanks, I know that's long
AugustinD


Posts:1886


07/04/2019 5:17 PM  
I have had a tiny bit of experience with adverse possession concepts at my former condo. People were unlawfully enlarging their patios, encroaching on common area. Liability and "adverse possession" came up. Also I helped a non-HOA neighborhood fight a developer. At one point, the developer knowingly trespassed onto a 400 foot x 15 foot strip of land. Again, adverse possession concerns arose. Where I am, among other things it takes ten years of open possession of the land. In Florida, the number is seven years. More at Florida statute 95.18. See http://www.leg.state.fl.us/statutes/index.cfm?App_mode=Display_Statute&URL=0000-0099/0095/Sections/0095.18.html

Questions and comments:

-- What do the deeds to these oddball (relatively) lots give as the "legal description"? If the deeds refer to the HOA's plats on file with the county, then I do not like the chances of an adverse possession claim by the HOA.

-- Most likely the owners of these homes have been paying property taxes pursuant in part to the plats. This also works against a claim of adverse possession by the HOA.

-- I agree that a court will construe language against the drafter of the contract.

-- The HOA could either seek "quiet title" (a court action) to this land, or ask the owners to quitclaim the land to the HOA (no court action required, at least where I am). Both these options will require notifying each homeowner who lives on one of the oddball lots. Some might submit, as they would prefer the HOA to maintain the land. Others will refuse. The HOA could send out polite letters to the 50 and explain the situation, being honest of course. The owners of the oddball lots could ask the HOA to buy the land. I think this is not unreasonable. But if I were on the Board (or if a membership vote to buy land is needed), I'd vote no, the HOA will not buy the land. The HOA is offering to maintain the land and insure it for liability. This is a lot all by itself, given the circumstances.

-- In any mass mailing to the 50, the HOA could argue politely that it has the right to enforce a uniform appearance, so it presently is not inclined to approve patios or anything else that would give the HOA an odd appearance overall. Location, location location. What one's neighbor does to his or her home does affect the value of one's own home.
NpS
(Pennsylvania)

Posts:3572


07/04/2019 5:41 PM  
Posted By GenoS on 07/04/2019 3:13 PM
Is there any liklihood that the HOA could win an action for Adverse Posession against the homes with the "extra land"?



I would avoid that path Geno.
1. Under agency law, your HOA is an agent acting on behalf of 100 principals. It's a fiduciary relationship. I can't think of any situation where a court would allow an agent to take property from his principal without just compensation.
2. Even if you chose to pursue that path, what would happen if 25 ignore your notices and 25 choose to fight your adverse possession attempt? I see a mess. Even those who ignore the notices could probably get an adverse possession reversed because its the HOA trying to take their property.
3. Adverse possession typically includes a requirement of open, notorious, and exclusive use - or some similar language. You have no way to prove exclusive use. I think Fl requires that adverse possession exists for 7 years before you make a claim. If I was one of the owners, all I would have to claim is that I put a couple of lawn chairs out there every July 4. That would be enough to defeat an adverse possession attempt.
4. Doesn't matter what happened over the last 20 years. The clock starts on the day that you take possession. You can't show any document that you intended to take possession before today. You've got 7 years to go.
5. Without going into any detail, I'll just mention that adverse possession attempts often require real estate tax adjustments that could be difficult to satisfy under your circumstances.

It sounds to me that a redo could be very expensive. Why do you think it's necessary? Why wouldn't you invest your energies on beefing up the restrictions on what people can do with that strip? It could be a lot less expensive and a lot less contentious than attempting adverse possession.

Adverse possession is going through the back door. Establishing stricter aesthetic rules is going through the front door. Either way, you've got a tough road to hoe. But the former is likely to lose you a lot more goodwill in your community.


Sikubali jukumu. Read all posts at your own risk.
SteveM9
(Massachusetts)

Posts:3296


07/05/2019 7:34 AM  
Outside the box thinking...

Why not let them make their patio, thus making their house footprint the same size as other house footprints? All would be equal.
JZ2
(Florida)

Posts:43


07/05/2019 2:07 PM  
NpS

Always enjoy reading your comments. I concur with your judgments.

GenoS

If you want to get into the weeds of this issue, here's a good overview:

https://www.omicsonline.org/open-access/adverse-possession-in-the-state-of-florida-statutory-analysis-and-considerations-2169-0170.1000120.php?aid=26083
GenoS
(Florida)

Posts:3123


07/05/2019 3:59 PM  
Thanks for the replies. A lot of insight there, much appreciated. And thanks for the link, JZ2, I know what I'm doing later tonight.

I'll try to answer as best I can, maybe not in order. Steve, as far as expanding the patios out to the lot boundaries, that could be an option. The docs are very vague on construction standards. The community was planned to have a certain "look" and the homes were all designed and built to reflect a "theme" of sorts. They're all the same color and the trim on all of them is a different color. If we had better architectural standards I think we could find a way to allow that. Uniformity of construction and appearance would be one of the goals. Right now, if someone bought a house here and had money to burn they could say they wanted to tear it down and have a new house built on the lot. Our documents are completely silent there. Without amendments to the CC&Rs I think we'd have to allow it. The average size is about 2,200 sq. ft. They're not tiny but they're not mainsions either.

It's not just patios being discussed. Some are talking about fences (the word "fence" does not appear in the docs), ditto for pools, dog runs and play sets. All of those might have been prohibited from the outset but weren't even considered since there wasn't supposed to be any "extra land" on any lot outside of the homes. The CC&Rs have been amended several times over the years but were only 17 pages long in 1989. I've seen recorded CC&Rs for HOAs in this county not much bigger than ours that run more than 100 pages. Ours seem to leave every stone unturned.

As for property taxes, this is a good one. All deeds contain a legal description of the property as, "Lot XX, ABCSubdivision, according to the plat thereof in Plat Book X, Pages YY through ZZ of the Public Records of RST County, Florida". On the county appraiser's website, each and every lot has a standard parcel number and a description that includes "Land Value" and "Improvement Market Value". Taxes are calculated on the Imrpovement Value only because EVERY lot shows 0.0000 as the number of acres associatied with the lot. These "property cards" were created when the subdivision was platted so 0.0000 acres is still shown for the lots with "extra land" even though they were ultimately built out and contain improvements (the residence) and 0.0184 acres of unimproved land.

We wanted to know more about this so last year a few of us, including a couple of board members, made an appointment to speak with people from the county appraiser's office. We had a meeting that lasted an hour. Two weeks later the county provided two representatives to come and give a presentation to the homeowners at our clubhouse to explain things. They spoke and answered questions for another hour.

The explanation was this: When the subdivision was platted they were using an old DOS-based computer program to computerize the county's property records. That software did not have a category for platted homeowners associations and so they categorized each lot as a "condominium". A condominium is usually just a volume of space that constitutes a "unit", and as such every lot here has 0 acres associated with it. They have no motivation or reason to change anything now, so to them it doesn't matter that some lots include less than two-tenths of an acre of unimproved land. For tax purposes, all of the unimproved real property in the subdivision is treated as common property and the tax burden is shared by all the homeowners who see their share included in their individual tax bills. It is not broken out separately and therefore, as the county sees it, it doesn't matter if a lot has extra land or not, the taxes would be the same for everyone.

If you look at the county's tax records, we are listed as a condominium, when, in fact, we are a Homeowners Association under Chapter 720 of the Florida Statutes. This designation causes problems for new homeowners on a regular basis because when they buy in here and go to get home insurance their insurance agents get very, very confused. Either way, the county has no desire to re-categorize the homes and lots here. So I don't think adjusting taxes after an action for Adverse Posession would be anything to worry about.

If only we could convert, legally, from an HOA to a Condominium association... it would make life a lot easier in several ways due to the differences in the statutes.

I've seen here and there references to "judicial lot boundary adjustments" but such references are rare. I think even if such modifications were possible here, the time to do it was way back when. Making an argument for such adjustments today would be an expensive way to set things right. "If it's so important why did you wait 20 years to do it?"

I agree that going the Adverse Posession route is akin to going in the back door. If we do go that route I expect there would have to be some sort of compensation offered. We've also discussed a sort of "reverse compensation" in the form of withdrawing the extra lands from the community-wide landscaping program (think: mow your own grass and trim your own bushes). Spending everyone's money in order to maintain privately owned lands within the subdivision is arguably improper. That's a 20-year ongoing flub that could probably be easily rectified. What would happen if a landscaping contractor's employee had an accident involving a riding mower on the private lands? Whose responsibility would/should it be to ensure there are no hazards on that property? I think the HOA has no duty to maintain that land and, therefore, shouldn't.

I also find it interesting that the clock starts to run (7 years in Florida is correct) after a claim is made. I thought it started to run after an adverse use of the land by a non-owner began. If true, that works to our advantage in another situation we have where a homeowner (one without any extra land) built a concrete patio in back of his home that was, essentially, on the common property. It's been there for 7 years (we counted) and were worried he could now claim it under Adverse Posession. That's interesting.
JohnC46
(South Carolina)

Posts:8550


07/05/2019 5:08 PM  
Geno

You said:

The explanation was this: When the subdivision was platted they were using an old DOS-based computer program to computerize the county's property records. That software did not have a category for platted homeowners associations and so they categorized each lot as a "condominium". A condominium is usually just a volume of space that constitutes a "unit", and as such every lot here has 0 acres associated with it. They have no motivation or reason to change anything now, so to them it doesn't matter that some lots include less than two-tenths of an acre of unimproved land. For tax purposes, The explanation was this: When the subdivision was platted they were using an old DOS-based computer program to computerize the county's property records. That software did not have a category for platted homeowners associations and so they categorized each lot as a "condominium". A condominium is usually just a volume of space that constitutes a "unit", and as such every lot here has 0 acres associated with it. They have no motivation or reason to change anything now, so to them it doesn't matter that some lots include less than two-tenths of an acre of unimproved land. For tax purposes, all of the unimproved real property in the subdivision is treated as common property and the tax burden is shared by all the homeowners who see their share included in their individual tax bills. It is not broken out separately and therefore, as the county sees it, it doesn't matter if a lot has extra land or not, the taxes would be the same for everyone. and the tax burden is shared by all the homeowners who see their share included in their individual tax bills. It is not broken out separately and therefore, as the county sees it, it doesn't matter if a lot has extra land or not, the taxes would be the same for everyone.

At first blush what occurs to me from the above is:

all of the unimproved real property in the subdivision is treated as common property

I think this is where you should be hanging your hat.



GenoS
(Florida)

Posts:3123


07/05/2019 6:51 PM  
Posted By JohnC46 on 07/05/2019 5:08 PM
At first blush what occurs to me from the above is:

all of the unimproved real property in the subdivision is treated as common property

I think this is where you should be hanging your hat.

There might be something there. 20+ years of county tax policy that seems to go against the letter of the platted lots.
NpS
(Pennsylvania)

Posts:3572


07/06/2019 3:43 AM  
Hi Geno

I still don't understand what your goal is. If it's to get the deficiencies of the past all cleaned up, I doubt you will achieve your objective as effectively as you probably expect. And in fact, it's even likely that you will create some new conflicts that you didn't expect.

Your added story about the owner who built his patio out onto HOA grounds was interesting. If anyone might have an adverse possession claim, it would be him. And if you tried to get him to remove it from HOA grounds, he might use adverse possession as a defense and win.

But back to my main question - Why? What is the goal?

Perhaps you could humor me by filling in the blanks:

If the HOA gets ownership of all the land, then ______________________________ will happen which the majority of our owners will think is beneficial and a worthwhile use of HOA funds to accomplish.

If the HOA starts providing services only on HOA land and not on those additional strips, then the change will be willingly accepted except by _____________________________ who will be upset about ______________.

Thanks.


Sikubali jukumu. Read all posts at your own risk.
GenoS
(Florida)

Posts:3123


07/06/2019 9:42 PM  
Hey, NpS, second one first: The only people who would be upset are those extra-land owners who want to have their cake and eat it too. They want to own it free and clear of any restrictions but expect the HOA to keep it maintained for them.

The goal, as it were, is to make sure the oringial developer's vision for the community is adhered to. If left to their own devices that common look would be lost. That's already one of the biggest violations we deal with in the form of ornaments and exterior lighting people think they can just attach to the outsides of their homes without obtaining approval from the ARB and the BoD first. The land-use restrictions in the CC&Rs apply to the common property. If my neighbor wants to store a rusty boat on land he owns in back of his house there is nothing in our documents that says he can't. There is a restriction in the CC&Rs that prohibits storing boats anywhere on the common property. When my neighbor says, "But that's not common property, that's my land!" then we would be up the creek unless the CC&Rs were amended to add use restrictions to all the non-common property as well.

We'd like to keep things simple with one set of restrictions that apply to everybody and not have to have additional restrictions that only apply to certain lots. I think that's the direction we're going to have to go. It's much easier to just point out that everything outside the home is common property and how the board couldn't allow you to build that improvement you want even if it wanted to.
GenoS
(Florida)

Posts:3123


07/06/2019 11:49 PM  
I see one of the requirements for Adverse Possession is that the adverse possessor must "create an enclosure", i.e. fence, or "cultivate the land". What does "cultivate" mean? Does anyone know if cutting the grass twice a month for a continuous period of 20 years constitute cultivation?
NpS
(Pennsylvania)

Posts:3572


07/07/2019 6:42 AM  
Posted By GenoS on 07/06/2019 11:49 PM
I see one of the requirements for Adverse Possession is that the adverse possessor must "create an enclosure", i.e. fence, or "cultivate the land". What does "cultivate" mean? Does anyone know if cutting the grass twice a month for a continuous period of 20 years constitute cultivation?



As stated in a prior post, the person claiming adverse possession must demonstrate "open, notorious, and exclusive" (or some similar terminology) use of the land - So that the deeded owner, on inspecting his land, can see that someone else is using it without permission. Back when land use was mostly agricultural, fences and farming were clear indicators that someone else was using the land "without permission of the owner". You would have to look at local case law to see how the word "cultivate" is interpreted today. The cases will probably be old because adverse possession is rare. Whatever you find, I don't think that providing a mowing service would qualify as cultivating.

Also as stated in that post, if I lived in one of those houses and put out a couple of lawn chairs once a year on July 4th, that would be sufficient to defeat your claim of adverse possession. Your use was not "exclusive" - I used it too. Your actions did not demonstrate an "intent" at the beginning of the time that you decided to take possession to "openly" and "notoriously" use the land to the exclusion of all others.

The essence of an adverse possession claim is that possession is with one person and the deed is with another. You don't have that situation.

I live in a townhouse community built 30 years ago. No fences. Every unit has some plot of land in front and back. Not all the same. Some of the houses might not even be built on the deeded lot because of some original screwups. For 30 years, the HOA has mowed the grass. I'm wondering Geno. What would you think of our HOA suddenly deciding to claim ownership of those front and back plots via adverse possession because our HOA has been mowing the grass for 30 years?

Sikubali jukumu. Read all posts at your own risk.
NpS
(Pennsylvania)

Posts:3572


07/07/2019 8:00 AM  
Posted By GenoS on 07/06/2019 9:42 PM
Hey, NpS, second one first: The only people who would be upset are those extra-land owners who want to have their cake and eat it too. They want to own it free and clear of any restrictions but expect the HOA to keep it maintained for them.

The goal, as it were, is to make sure the oringial developer's vision for the community is adhered to. If left to their own devices that common look would be lost. That's already one of the biggest violations we deal with in the form of ornaments and exterior lighting people think they can just attach to the outsides of their homes without obtaining approval from the ARB and the BoD first. The land-use restrictions in the CC&Rs apply to the common property. If my neighbor wants to store a rusty boat on land he owns in back of his house there is nothing in our documents that says he can't. There is a restriction in the CC&Rs that prohibits storing boats anywhere on the common property. When my neighbor says, "But that's not common property, that's my land!" then we would be up the creek unless the CC&Rs were amended to add use restrictions to all the non-common property as well.

We'd like to keep things simple with one set of restrictions that apply to everybody and not have to have additional restrictions that only apply to certain lots. I think that's the direction we're going to have to go. It's much easier to just point out that everything outside the home is common property and how the board couldn't allow you to build that improvement you want even if it wanted to.




Geno. All I'm hearing in your explanation is that you can't control what people do with their own land, so you you're going to try to take it away from them so you will be able to control that land because you will own it. As a strategy, I think it fails. Especially since adverse possession is an equitable principle - Something that is designed as a way to remedy an unfair situation. I don't see it working for you.

The problems you describe are universal. Non-compliance and limits on enforcement. So work on that. Have you spent any time investigating how you can modify your architectural requirements to limit the use of the small strips? I find it difficult to believe that you have absolutely no control over what is done on homeowner-owned property. Can I paint my house purple with pink polka-dots. Why not? It's my property. And what about my windmills and flamingos.

If there are no shed rules, make some shed rules. If there are no fence rules, make some fence rules. If there are no patio rules, then make some patio rules. Work within the framework that retains the look and feel of the community - Which is the argument you have the best chance of succeeding on.

In some jurisdictions, there is a term "controlled facility". It refers to land that is not common land but whose use is controlled by the HOA. It might be worth your while to research some kind of connection to a phrase like that. The principle behind it is that, in order to maintain the aesthetic, the HOA needs to be able to control the behavior of the owners.

As far as a return to vision of the original builder, if that vision was financially sustainable at the time, he wouldn't have had to abandon his efforts. I agree that it sucks when a new developer moves in and builds something that you consider inferior, but that's not the fault of the new buyers. And it's one of the risks of an early owner in any "in development" community.



Sikubali jukumu. Read all posts at your own risk.
JohnC46
(South Carolina)

Posts:8550


07/07/2019 8:56 AM  
NPS

No matter how many rules someone will do something not liked and not covered by any rule.
NpS
(Pennsylvania)

Posts:3572


07/07/2019 10:11 AM  
Posted By JohnC46 on 07/07/2019 8:56 AM
NPS

No matter how many rules someone will do something not liked and not covered by any rule.



In total agreement with you John. Rules will never cover everything. Enforcement is never easy.

My point is ... If Geno is going down the path of bringing his community into compliance with some standard of appearance ... he should look to the tools he already has at his disposal ... not attempt to take people's property away from them.

I make no recommendation on whether Geno should be pursuing that path. Only that the approach he looks to be pursuing (adverse possession) is less likely to achieve a satisfactory outcome.

Sikubali jukumu. Read all posts at your own risk.
JohnC46
(South Carolina)

Posts:8550


07/07/2019 11:15 AM  
I say Geno should go after that all outside the house is common property regardless on the house size as I suggested earlier.

In our patio homes HOA we strive for a common look. The HOA does all landscaping and we do not allow anybody to plant anything other than to replace existing if needed. If requested different our answer would be no, nay never.

In my last HOA, the HOA did not maintain the landscaping. Each owner did but we still had restrictions on what they could do and they needed to get approval form the ARB thus we had control.
NpS
(Pennsylvania)

Posts:3572


07/07/2019 12:35 PM  
Posted By JohnC46 on 07/07/2019 11:15 AM
I say Geno should go after that all outside the house is common property regardless on the house size as I suggested earlier.

In our patio homes HOA we strive for a common look. The HOA does all landscaping and we do not allow anybody to plant anything other than to replace existing if needed. If requested different our answer would be no, nay never.

In my last HOA, the HOA did not maintain the landscaping. Each owner did but we still had restrictions on what they could do and they needed to get approval form the ARB thus we had control.



I completely agree with treating all grounds the same - not distinguishing based on who owns it. In my case, there's no way to look at our lawns and see what's owned by the HOA and what's owned by the homeowners. Since the amount owned by owners is relatively small - It would actually cost us more to have our landscapers do some but not all of what they see. Much faster and simpler to have them do everything.

We're restrictive on what can and can't be planted, but not to the degree you are. That's partially because we're in the midst of a major re-planting effort. The more owners do, the less the HOA will need to spend. Must still be approved though.

One of the things I like about living here is that we don't have some lawns cared for and others not. You can tell who the gardeners are and I appreciate the effort that goes into what they do. I think it adds character to our community. Since we've encouraged homeowner planting for many years, not something we would mess with.

Sikubali jukumu. Read all posts at your own risk.
GenoS
(Florida)

Posts:3123


07/07/2019 4:06 PM  
Posted By NpS on 07/07/2019 6:42 AM
As stated in a prior post, the person claiming adverse possession must demonstrate "open, notorious, and exclusive" (or some similar terminology) use of the land - So that the deeded owner, on inspecting his land, can see that someone else is using it without permission. Back when land use was mostly agricultural, fences and farming were clear indicators that someone else was using the land "without permission of the owner". You would have to look at local case law to see how the word "cultivate" is interpreted today. The cases will probably be old because adverse possession is rare. Whatever you find, I don't think that providing a mowing service would qualify as cultivating.

I'm finding articles and onling blogs that say Adverse Possession is a complicated issue, one that varies from state to state, and that even experienced professionals, like attorneys, don't really understand it all that well. Great.

Posted By NpS on 07/07/2019 6:42 AM
Also as stated in that post, if I lived in one of those houses and put out a couple of lawn chairs once a year on July 4th, that would be sufficient to defeat your claim of adverse possession. Your use was not "exclusive" - I used it too. Your actions did not demonstrate an "intent" at the beginning of the time that you decided to take possession to "openly" and "notoriously" use the land to the exclusion of all others.

The essence of an adverse possession claim is that possession is with one person and the deed is with another. You don't have that situation.

Keeping in mind I'm no expert, Florida seems to require "open and notorious" use, but I see nothing about "exclusive use" in Chapter 95 of the Florida Statutes. I realize there's probably a lot of precedent-setting case law, too, that's not obvious. But making improvements on the property is also a factor in determining possession. The builder installed underground irrigation lines and sprinkler heads in close proximity to the foundations of the homes. That could be another factor since it clearly shows the original intent to maintain it. It's pretty open and notorious if I've got a dozen sprinkler heads right outside the back of my house that weren't installed by any homeowner. Under "color of title" in Florida, that would be a pretty good indication that that land was intended to be common property.

Posted By NpS on 07/07/2019 6:42 AM
I live in a townhouse community built 30 years ago. No fences. Every unit has some plot of land in front and back. Not all the same. Some of the houses might not even be built on the deeded lot because of some original screwups. For 30 years, the HOA has mowed the grass. I'm wondering Geno. What would you think of our HOA suddenly deciding to claim ownership of those front and back plots via adverse possession because our HOA has been mowing the grass for 30 years?

I'm not sure what a plat for townhomes looks like, but I'd ask are those plots of land included within the boundary of your unit? As to the HOA claiming ownership, my answer would depend on that. Do your county land records indicate any amount of acreage or unimproved land appurtenant to the townhomes? All homes here are in the county's land records and all indicate that each parcel consists of an improvement (the home) and 0.0000 acres of other land. 800 ft. sq. isn't a lot of land but it's certainly more than 0.0000 acres to 4 digits. That says to me that the county doesn't think anyone owns it, either.

In this HOA, the association owns all of the driveways. They're common property. That's sort of unusual, I think, and it supports the idea that the original plan for the subdivision was for ALL property outside of the walls of the residence was intended to be common property. There is also a sheet in the original site plans on file with the county that has 15 notations at the bottom. The last one says, "Ownership of each unit shall be conveyed by a fee simplt title with remaining land & roadways being maintained and owned by the property owners association."

The plat lays out the lots and each one is located by lines that are all connected and tied back to surveyor referenece monuments and ultimately to a "section corner" of the PLSS survey grid. The last page of the plat shows "Typical Lot Boundary Dimensions" and lists the lot numbers that each shape pertains to. The fact that the word "Typical" is there instead of simply "Lot Boundary Dimensions" may be material. Why say "typical" if you meant "exact"?

I'm starting to see a new angle, one in which the HOA isn't seeking to take title to anyone else's land. Instead of an Adverse Possession action, the HOA's stance would shift to one of claiming that "those homeowners never owned that land at all." I think there's enough evidence to justify that interpretation. Whether or not it's enough to sway a court that there's a "preponderance" of the evidence, I don't know. Some form of judicial proceding that would determine exactly where the lot boundaries are would be preferable to dozens of claims of Adverse Possession.
GenoS
(Florida)

Posts:3123


07/07/2019 4:25 PM  
Posted By NpS on 07/07/2019 8:00 AM
As far as a return to vision of the original builder, if that vision was financially sustainable at the time, he wouldn't have had to abandon his efforts.

That is indisputable. The original developer bailed out after only half of the planned homes were built, leaving the homeowners to deal with the bag of kaka. That was the time, in my opinion, to deal with it. The homeowners at the time had months of advance notice that turnover was going to happen. They failed to petition the developer to enact significant changes to the governing documents before he bailed out. The developer could have made sweeping changes on his own before turnover with a single signature. But the homeowners were not sophisticated enough to realize that. Like I've said before, the homeowner boards of directors here have been bad from Day One.
NpS
(Pennsylvania)

Posts:3572


07/07/2019 6:21 PM  
Posted By GenoS on 07/07/2019 4:06 PM
I'm starting to see a new angle, one in which the HOA isn't seeking to take title to anyone else's land. Instead of an Adverse Possession action, the HOA's stance would shift to one of claiming that "those homeowners never owned that land at all." I think there's enough evidence to justify that interpretation. Whether or not it's enough to sway a court that there's a "preponderance" of the evidence, I don't know. Some form of judicial proceding that would determine exactly where the lot boundaries are would be preferable to dozens of claims of Adverse Possession.



Much improved position. Claiming that the HOA always had title eliminates the tricky business of adverse possession attempts.

I especially like it if you don't have to go to court. If you get a lawyer's opinion letter that interprets the strange language of your docs the way you do, you can implement your gameplan without going to court. In your shoes, I would go for a lawyer's opinion stating that, after reviewing your docs and the relevant laws, all outside land is owned by the HOA. Without going to court, the BOD should be able to rely on that letter as justification for imposing rules on those strips of land just like all other grounds in your community.

I certainly wouldn't go to all the effort you have on this issue. So I wish you all the best.

Sikubali jukumu. Read all posts at your own risk.
AugustinD


Posts:1886


07/07/2019 7:51 PM  
Posted By GenoS on 07/04/2019 3:13 PM
Fast forward another 2 years and the homebuilder was building homes on some lots that were smaller in size than what the lot size on the plat called for. There probably should have been a re-plat but that was never done. So the situation became one in which several dozen lots had homes on them PLUS an additional amount of land outside of the original foundations' boundaries but within the legal boundaries of the lots.
Technically, the owners of those lots also own that "extra" land. It comes out to about 800 ft. sq. per lot where it exists.

I think that, first, the plats showing the "units" to be bigger than the actual built house for some 50 owners and second, "fee simple title" being used as the conveyance, is a big deal. I think these facts are a huge obstruction to any casual plan that the HOA might contrive to just take over the land outside the walls of these 50 residences.

Posted By GenoS on 07/05/2019 3:59 PM
It's not just patios being discussed. Some are talking about fences (the word "fence" does not appear in the docs), ditto for pools, dog runs and play sets. All of those might have been prohibited from the outset but weren't even considered since there wasn't supposed to be any "extra land" on any lot outside of the homes. The CC&Rs have been amended several times over the years but were only 17 pages long in 1989. I've seen recorded CC&Rs for HOAs in this county not much bigger than ours that run more than 100 pages. Ours seem to leave every stone unturned.

The above certainly goes to intent. To me the problem is the plat and the deeds for the 50 homes conflict with this intent. 'When there's an ambiguity in a contract, interpretation is made against the drafter of the document.' To me, if this went to court, right now I think this means these 50 homeowners would win a court ruling saying the land is theirs and not the HOA's.

All deeds contain a legal description of the property as, "Lot XX, ABCSubdivision, according to the plat thereof in Plat Book X, Pages YY through ZZ of the Public Records of RST County, Florida".

I think the above is legally powerful.

On the county appraiser's website, each and every lot has a standard parcel number and a description that includes "Land Value" and "Improvement Market Value". Taxes are calculated on the Improvement Value only because EVERY lot shows 0.0000 as the number of acres associated with the lot. These "property cards" were created when the subdivision was platted so 0.0000 acres is still shown for the lots with "extra land" even though they were ultimately built out and contain improvements (the residence) and 0.0184 acres of unimproved land.
...
The explanation was this: When the subdivision was platted they were using an old DOS-based computer program to computerize the county's property records. That software did not have a category for platted homeowners associations and so they categorized each lot as a "condominium". A condominium is usually just a volume of space that constitutes a "unit", and as such every lot here has 0 acres associated with it. They have no motivation or reason to change anything now, so to them it doesn't matter that some lots include less than two-tenths of an acre of unimproved land. For tax purposes, all of the unimproved real property in the subdivision is treated as common property and the tax burden is shared by all the homeowners who see their share included in their individual tax bills. It is not broken out separately and therefore, as the county sees it, it doesn't matter if a lot has extra land or not, the taxes would be the same for everyone.

I cannot quite tell: Does the HOA pay any property taxes?

I had a long chat recently with my county's tax assessor over a contentious strip of land not shown in the tax assessor's records. A developer had trespassed on it. Questions of ownership were flying, as they should. The tax assessor determined that taxes had not been paid on the strip probably ever since the strip was carved out of a bigger lot. It was an error by the tax assessor. Who has been paying taxes on acreage often goes into a court decision of who owns the land. But since no one had been paying the taxes on the land, the taxes could not be used by anyone to show ownership. In Geno's HOA's case, if I am understanding what he wrote above correctly, I think who has been paying taxes on the land may also be legally irrelevant when it comes to determining ownership of the land.

Posted By GenoS on 07/06/2019 9:42 PM
The land-use restrictions in the CC&Rs apply to the common property. If my neighbor wants to store a rusty boat on land he owns in back of his house there is nothing in our documents that says he can't. There is a restriction in the CC&Rs that prohibits storing boats anywhere on the common property. When my neighbor says, "But that's not common property, that's my land!" then we would be up the creek unless the CC&Rs were amended to add use restrictions to all the non-common property as well.

Noted. I can see the conundrum.

Posted By GenoS on 07/07/2019 4:06 PM
In this HOA, the association owns all of the driveways. They're common property. That's sort of unusual, I think, and it supports the idea that the original plan for the subdivision was for ALL property outside of the walls of the residence was intended to be common property. There is also a sheet in the original site plans on file with the county that has 15 notations at the bottom. The last one says, "Ownership of each unit shall be conveyed by a fee simple title with remaining land & roadways being maintained and owned by the property owners association."

The plat lays out the lots and each one is located by lines that are all connected and tied back to surveyor reference monuments and ultimately to a "section corner" of the PLSS survey grid. The last page of the plat shows "Typical Lot Boundary Dimensions" and lists the lot numbers that each shape pertains to. The fact that the word "Typical" is there instead of simply "Lot Boundary Dimensions" may be material. Why say "typical" if you meant "exact"?

Does the plat either show or indicate that the driveways are common property?

I have related a few times elsewhere here how my former condo's attorney hit the roof when she heard that the condo was being casual about people encroaching on common property via enlarging their patios. Liability, liability liability. Put a stop to this now, she ordered. Make people put their patios back the way they were. And so on.

If there's slip-and-fall on one of these patios, who should the victim sue? First, the deep pockets. The one with the most insurance. The homeowner says, "Well, it's really the HOA's property. The Board has been saying so all along. The victim should go after them.... " Let the legal wrangling begin.

Does your HOA's insurer have anything to say about this land that may be in legal limbo?

I do not think an attorney's opinion saying the land is the HOA's is legally sufficient. I think a mere attorney's opinion leaves the HOA vulnerable. Right now, I think the HOA has to seek title to the land from each owner. A new plat must be done. Alternatively, the land will remain each owner's, to do with as she or he pleases, until the CC&Rs are amended.
NpS
(Pennsylvania)

Posts:3572


07/08/2019 2:11 AM  
Posted By AugustinD on 07/07/2019 7:51 PM
I do not think an attorney's opinion saying the land is the HOA's is legally sufficient. I think a mere attorney's opinion leaves the HOA vulnerable. Right now, I think the HOA has to seek title to the land from each owner. A new plat must be done. Alhttp://www.hoatalk.com/HOADiscussionForum/tabid/55/view/topics/forumid/1/Default.aspxternatively, the land will remain each owner's, to do with as she or he pleases, until the CC&Rs are amended.



Augustin. The HOA wants to establish rules and restrictions that apply to all lands within the perimeter of the of the HOA land, including everything but the houses themselves.

IMO, the best way to do that is to make the rules and apply them. Establish a course of course of conduct that would allow the HOA to set the aesthetic for the entire community. Are there risks? Sure. There are risks involved in any attempt to alter what people think may be accurate.

IMO, spending any money on going to court over property lines is a waste. Remember, this is about putting up fences or putting down patios - Things that are typically accomplished through architectural standards. That would always be my choice - before going to court in an attempt to "repair" the past.

As I said in another post, my HOA removed around 250 trees, many planted too close to the houses. We came up with a rule of thumb - if a tree was within 15' of the house, the owner paid 1/3 of the cost. The HOA paid for the rest. We chose the distance. We set the percentage. We applied it evenly across the board. We allowed for an exception - Any homeowner who claimed that a tree that was within 15' was not on their lot could get the charge reversed by paying for their own survey and providing that survey to the HOA. Not a single homeowner took that option.

I tell this story because, as much as Geno is all genned up to have the HOA "own" the land, I can't imagine where it would be an important issue to 95% of the owners in his community. So yes, avoiding court should be a primary objective for something like this.

If Geno, gets a lot of pushback, a rule can be modified as needed - Once again without going to court.

I've seen people go to court over land. Whenever there's a cloud on title, there needs to be an evaluation - Is it worth the cost? I don't see it. I don't see it.

Sikubali jukumu. Read all posts at your own risk.
NpS
(Pennsylvania)

Posts:3572


07/08/2019 3:20 AM  
A lawyer's letter is IMO the most economical first step.

1. Possibly the lawyer won't agree with Geno's perspective on ownership.

2. Possibly the lawyer will say that the Geno's objective of setting standards for all land can be accomplished whether the HOA owns the land or not.

Either way, Geno's BOD will be able to make better informed decisions.

Sikubali jukumu. Read all posts at your own risk.
AugustinD


Posts:1886


07/08/2019 8:28 AM  
Posted By GenoS on 07/04/2019 3:13 PM
In the last few years we've had an influx of new homeowners as the original ones depart. Several of them are savvy enough to recognize that there's a 20 foot strip in back of their homes that they own. They want to build concrete patios and there's nothing in our documents that says they can't other than the general requirement in the CC&Rs that calls for "harmony" and "common characteristics of the neighborhood" for any alterations to the RESIDENCES. If we rely on LOT = RESIDENCE, which is stated in the CC&Rs, then I think that's a very iffy proposition. In a dispute I think most courts will construe against the drafter of the language, and the HOA would lose that argument.


NpS, assuming Geno's HOA's CC&Rs permits rule-making by the Board to implement the CC&Rs, then sure, the Board could prohibit patios, sandboxes, boats et cetera on the land that the plats and deed appear to indicate belongs to 50 individual owners and not the HOA. The Board could state the justification is enforcement of the "harmony" and "common characteristics" clauses and ignore the "residences" qualifier of the CC&Rs. The Board could point to everything Geno pointed to that suggests the HOA is to maintain everything outside the walls of the house. Maybe the HOA attorney will agree. Or if the HOA attorney does not, then for this situation, I think the HOA attorney would be willing to give his opinion but then defend whatever position the Board wants. (I mean, there's a fair chance that creating this rule will stir up legal trouble, adding to the attorney's billable hours. So that carrot may be dangling in front of the HOA attorney's nose.) If one of the 50 owners "pushes back," then the Board could cross this bridge when it comes to it. No one goes to court over a non-emergency situation like this without an exchange of demand letters over typically six months or more beforehand, even when the case seems to be a slam dunk. Corporations including HOAs often delay anyway as a legitimate harassment technique, to let owners know that the HOA Board is not just going to roll over everytime someone objects to an all-volunteer board decision, and to force owners to pony up some serious dollars for an attorney to read the governing docs, study the plats, and so on.

The penalties for trespass in Florida are not too steep ($500 and/or up to six months in jail). I do not see the jail time happening, though. Worst case, $25,000 of fines + whatever the HOA attorney charges to deal with this?

Eight hundred square feet of land per each of the 50 lots is a lot. I can see the hackles of many of these 50 owners being raised. But I could be wrong.

Let the games begin?
NpS
(Pennsylvania)

Posts:3572


07/08/2019 12:01 PM  
Posted By AugustinD on 07/08/2019 8:28 AM
Maybe the HOA attorney will agree. Or if the HOA attorney does not, then for this situation, I think the HOA attorney would be willing to give his opinion but then defend whatever position the Board wants. (I mean, there's a fair chance that creating this rule will stir up legal trouble, adding to the attorney's billable hours. So that carrot may be dangling in front of the HOA attorney's nose.)

The penalties for trespass in Florida are not too steep ($500 and/or up to six months in jail). I do not see the jail time happening, though. Worst case, $25,000 of fines + whatever the HOA attorney charges to deal with this?

Eight hundred square feet of land per each of the 50 lots is a lot. I can see the hackles of many of these 50 owners being raised. But I could be wrong.

Let the games begin?



My suggestion of a lawyer's opinion letter involves a request for a formal opinion by the lawyer that the lawyer believes has a good chance of standing up in court if challenged. They aren't cheap. And the lawyer is putting his reputation on the line when he writes it. If it goes before a judge who thinks that the letter is a bunch of junk, the judge will take it out of the lawyer's hide one way or another. So the lawyer's opinion letter has potential consequences to the lawyer - It's not just about billables.

The advantage to Geno's HOA of the lawyer's letter is that, under the business judgement rule, the BOD members can rightfully rely on the lawyer's opinion letter without personal liability. People tend to lose conviction when they might be personally exposed (even when there is D&O insurance). The letter makes it easier to keep the BOD together in the face of pushback.

There will be no trespass claim because the HOA has been servicing all lands for the past 20 years. Anyone who suddenly claims trespass would take heat for not raising that claim long ago. And what are the damages? None. They got their grass mowed for 20 years. It's laughable that anyone would claim trespass.

No matter what Geno's HOA does, hackles will be raised. It's unavoidable. Geno's goal should be to get his BOD better informed before something blows up in their faces. The lawyer's opinion letter is a safe place to start.

Legal fights over land ownership can get extremely nasty. Usually there is some financial benefit to the winner, and that makes it worthwhile fighting over. But here, there is no financial gain to anyone. So, as I keep repeating, it is best for Geno's HOA to take actions that don't intentionally take them to the courtroom for their answers.

Sikubali jukumu. Read all posts at your own risk.
AugustinD


Posts:1886


07/08/2019 1:27 PM  
Lawyers' opinion letters to their clients are protected by attorney-client privilege. They do not go before a judge.

The "financial benefit" to the winner is the value of the land and the owner being able to do with it what she or he pleases, within whatever covenants apply.

You and I appear to agree that adverse possession is not the route to go. You and I appear to agree a real estate attorney's opinion is a correct step.

Quitclaiming is another route to go that will keep the matter out of court. Though a competent real estate attorney might say to seek quiet title in court, too. If the HOA has a quitclaim deed or the owner says she or he is ready to give up rights to the land, going through court to quiet title will be trivial.

NpS
(Pennsylvania)

Posts:3572


07/08/2019 1:56 PM  
Posted By AugustinD on 07/08/2019 1:27 PM
Lawyers' opinion letters to their clients are protected by attorney-client privilege. They do not go before a judge.

The "financial benefit" to the winner is the value of the land and the owner being able to do with it what she or he pleases, within whatever covenants apply.

You and I appear to agree that adverse possession is not the route to go. You and I appear to agree a real estate attorney's opinion is a correct step.

Quitclaiming is another route to go that will keep the matter out of court. Though a competent real estate attorney might say to seek quiet title in court, too. If the HOA has a quitclaim deed or the owner says she or he is ready to give up rights to the land, going through court to quiet title will be trivial.




Nothing trivial about claiming rights in land, even when one of the property owners had no idea that her land included anything more than her house. The sudden knowledge of nothing more than someone trying to take something away from her can trigger a harsh response.

The opinion letter can come before a judge if the BOD members want to use it to defend their decision under the BJR. Also, disclosure to a judge is not the same as disclosure to a member of the general public.

Like you said, we are together on AP and use of a RE lawyer.

I think an attorney concerned about his client's potential cost might lean toward the quitclaim, although he must describe the potential risk to protect himself. At the end of the day, when talking about land ownership, the question is whether a title company will issue a clean title report based on the quitclaim deeds.

But - Even so - This is where you and I disagree - I wouldn't spend the money on lawyers if I didn't have to - And there is sure to be owners who will get angry over an expense that can run into the tens of thousands of dollars. Many owners get angry if they can't see any result that benefits them directly, and this could likely be seen as providing no direct benefit in the eyes of many owners - Regardless of what Geno thinks will benefit the community. The bigger the dollars, the harder to defend against the homeowner pushback.

Sikubali jukumu. Read all posts at your own risk.
GenoS
(Florida)

Posts:3123


07/08/2019 3:25 PM  
Posted By AugustinD on 07/07/2019 7:51 PM





Posted By AugustinD on 07/07/2019 7:51 PM
I think that, first, the plats showing the "units" to be bigger than the actual built house for some 50 owners and second, "fee simple title" being used as the conveyance, is a big deal. I think these facts are a huge obstruction to any casual plan that the HOA might contrive to just take over the land outside the walls of these 50 residences.

Very possibly. Generally our desire isn't to "take over the land" because we don't like what the owners are doing with it. They aren't doing anything with it at all and haven't for decades. What we're hoping to do is somehow formalize the status quo. The HOA has maintained all of the landscaping outside the walls of the homes and that has been the only "use" to date that has occurred. Most owners of the 50 homes in question have never themselves even realized there was more land on their lot than just their house. They were perfectly happy to accept that all that land was common property because that's what they were told when they moved in. It's potential challenges to that status quo we're looking to head off. After 30 years the place still looks pretty good on the whole and the uniformity of appearance contributes to that. It might not be everyone's cup of tea, sure. Some people want to personalize the outside of their home or their front yard, we get that, but we also get that our community isn't one a buyer should consider buying into if that's what they're looking for. Most homeowners that have been here for 5 or more years will say the appearance and uniformity of the neighborhood is one of the big reasons they decided to purchase a home here.

Posted By AugustinD on 07/07/2019 7:51 PM
I cannot quite tell: Does the HOA pay any property taxes?

No, as per Section 193.0235 of the Florida Statutes, "Ad valorem taxes and non-ad valorem assessments shall be assessed against the lots within a platted residential subdivision and not upon the subdivision property as a whole. An ad valorem tax or non-ad valorem assessment, including a tax or assessment imposed by a county ... may not be assessed separately against common elements utilized exclusively for the benefit of lot owners within the subdivision, regardless of ownership."

When we spoke to representatives of the county Appraiser's office last year, we asked if those 50 owners do, in fact, own acreage that's not common property, would they then be liable for any additional taxes. We thought if that was the case then that could be incentive for the homeowners to give up their claims to the 20' strips (it would lower their taxes). But the county people said no, as far as the county is concerned everything outside of the residences is already common property for tax purposes. Every one of the 100 homes here has a county property record that indicates 0.0000 acres of land appurtenant to the structure of the home. A hypothetical argument in the future might be, "How can that patio be on your land if the county records show that you don't own any land?"

Posted By AugustinD on 07/07/2019 7:51 PM
Does the plat either show or indicate that the driveways are common property?

It does. It shows that clearly. Everything outside of the homes' foundations was meant to be common property including the driveways and sidewalks that lead from the driveway to the front doors. It's clear on the plat and in all of the site planning drawings submitted to and approved by the county.

Posted By AugustinD on 07/07/2019 7:51 PM
I have related a few times elsewhere here how my former condo's attorney hit the roof when she heard that the condo was being casual about people encroaching on common property via enlarging their patios. Liability, liability liability. Put a stop to this now, she ordered. Make people put their patios back the way they were. And so on.

If there's slip-and-fall on one of these patios, who should the victim sue? First, the deep pockets. The one with the most insurance. The homeowner says, "Well, it's really the HOA's property. The Board has been saying so all along. The victim should go after them.... " Let the legal wrangling begin.

I completely agree with that.

Posted By AugustinD on 07/07/2019 7:51 PM
Does your HOA's insurer have anything to say about this land that may be in legal limbo?

Not that I know of. I'm fairly certain they're not even aware of the situation. Heck, half of the 50 affected homeowners aren't even aware of it.

Posted By AugustinD on 07/07/2019 7:51 PM
I do not think an attorney's opinion saying the land is the HOA's is legally sufficient. I think a mere attorney's opinion leaves the HOA vulnerable. Right now, I think the HOA has to seek title to the land from each owner. A new plat must be done. Alternatively, the land will remain each owner's, to do with as she or he pleases, until the CC&Rs are amended.

That's basically my view as well.

If we're lucky we might get some sort of judicial modification of the plat so that it agrees with the facts on the ground. Moving the rear lot line up 20' on 50 lots would impact absolutely no one's life here at all right now.

The actual turnover of the HOA to the homeowners was conditioned on the closing of the sale of the 50 lots. Surviving minutes from that time show that the existing homeowners were understandably anxious that someone finish building out the subdivision so that the full complement of 100 owners would be paying assessments. The original 50 owners would have agreed to just about anything, I have to think, in order to make that happen.

The new homebuilder that came in with 50 lots to build on should have been given a choice:

1. Build on every lot right out to the edges of the lot boundary as shown on the plat.
2. Re-plat the subdivision using his proposed building footprints and do whatever was needed to get it approved by the county.
3. Undertake a revision of the governing documents to account for the fact that half the homes would have an additional 800 sq. ft. of land outside their walls that wasn't common property.

None of that was done. #3 should arguably have been done by the original developer, but they wanted to abandon their involvement here as quickly as possible and at that point they weren't worried about the homeowners.

Thanks for your comments, AugustinD. Always appreciated.
GenoS
(Florida)

Posts:3123


07/08/2019 3:51 PM  
Posted By NpS on 07/08/2019 2:11 AM
I tell this story because, as much as Geno is all genned up to have the HOA "own" the land, I can't imagine where it would be an important issue to 95% of the owners in his community. So yes, avoiding court should be a primary objective for something like this.

Just to be clear, no one is ginned up to do anything at the moment. We're just trying to get the view from 50,000 ft. about what our options are. It's not like there's any organized effort underway yet to do anything. We're spitballing to see if there's a way we can address all of the considerations you've noted. We want to be proactive and get out in front of the ball before any real problems arise.

Of course we want to avoid the hassles of going to court. I even allowed up top that it might not be worth it to go the route of Adverse Possession. If it were simpler and more clear cut then that might've been a more appealing option. But the more I read and the more I hear from people here I'm pretty much convinced that that's not the way to go. Doing a comprehensive review, revision, and re-writing of our governing documents is probably the best route to accomplish what we're looking to do. That is likely to be very expensive. But probably not as expensive as court action.
NpS
(Pennsylvania)

Posts:3572


07/08/2019 4:05 PM  
Got it. Glad you're looking to redoing your docs as a viable alternative. Best.


Sikubali jukumu. Read all posts at your own risk.
AugustinD


Posts:1886


07/09/2019 12:45 PM  
Posted By GenoS on 07/08/2019 3:25 PM

Posted By AugustinD on 07/07/2019 7:51 PM
I cannot quite tell: Does the HOA pay any property taxes?

No, as per Section 193.0235 of the Florida Statutes, "Ad valorem taxes and non-ad valorem assessments shall be assessed against the lots within a platted residential subdivision and not upon the subdivision property as a whole. An ad valorem tax or non-ad valorem assessment, including a tax or assessment imposed by a county ... may not be assessed separately against common elements utilized exclusively for the benefit of lot owners within the subdivision, regardless of ownership."

When we spoke to representatives of the county Appraiser's office last year, we asked if those 50 owners do, in fact, own acreage that's not common property, would they then be liable for any additional taxes. We thought if that was the case then that could be incentive for the homeowners to give up their claims to the 20' strips (it would lower their taxes). But the county people said no, as far as the county is concerned everything outside of the residences is already common property for tax purposes. Every one of the 100 homes here has a county property record that indicates 0.0000 acres of land appurtenant to the structure of the home. A hypothetical argument in the future might be, "How can that patio be on your land if the county records show that you don't own any land?"


First, isn't a reasonable interpretation of this that the HOA has been "paying the taxes," or more accurately obtained an exemption from taxes for this land, via Statute Section 193.0235? From what you wrote above, it's clear the 50 unit owners of this roughly 800 square feet of land per unit have never paid taxes on the land.

I am looking at Florida statute 95.18 on adverse possession. Now I kind of like your chances for an adverse possession claim. I think the tax situation may play a bit of a role, if only as leverage with the owners. Note section 2(b), indicating that no fence et cetera is required. Your HOA need merely have maintained the land in question.

Second, should the county tax assessor be taxing the 50 owners of their respective land for this roughly 800 extra square feet? I am factoring in how the County way back when deemed the subdivsion to be a condominium for tax purposes. It sounds like they do not want to deal with it. But if push came to shove, so far it seems entirely possible that, at least as a matter of property tax law, the 50 should be paying more taxes than they are.

Third, if the HOA does not want to seek adverse possession (or um politely threaten same), I think the HOA has some leverage here in getting all 50 to, say, quitclaim the land and then agree to stay silent during a quiet title court proceeding. With HOA attorney editing, maybe the letter from the HOA could go something like this:


---Start Draft Letter---
Dear HOA Member,

First, the plats for this HOA show that you may own the land outside the boundaries of your house up to about 20 feet out from the (north, south, east, west?) side. But second, the HOA has been maintaining this land for decades now. Third, today, on advice of counsel, the HOA has some liability concerns about the situation. Fourth, because of some unusual practices at the county tax assessors' and for other reasons, the HOA has also obtained an exemption from property taxes for this land for many years. Technically the HOA believes you may owe property taxes on this land. Because of the unusual way this HOA's last 50 homes were completed, the HOA is a in a conundrum. To resolve the conundrum, the HOA would like you to agree to (a) quitclaim this land to the HOA and (b) stay silent as the HOA seeks quiet title to this land. This way, you will never own taxes on this land, and the HOA will continue to maintain this land and provide liability insurance for it. If you wish to discuss this further, please attend a town hall style meeting on _______. The HOA attorney will be present to answer questions. At this meeting, quitclaim forms will be provided for you to take home and study. In the near future, the HOA will ask you to submit these forms.

Thank you for considering this,

Board of Directors
Alligator Alley HOA
---End Draft Letter---


Thank you for the elaboration. I agree about what the builder-developer of the second 50 homes should have done.

NpS, noted about a HOA-defendant voluntarily disclosing privileged attorney-client communications. Though if I were on a board that had a member suing it because the member believed the Board was reckless in some decision, I would not share any of the HOA attorney's opinions. Because the next time someone challenges the board, and the Board does not want to share the attorney's opinion, it looks bad. My impression is that challenges to a HOA's business judgment are quite hard to win in court.
GenoS
(Florida)

Posts:3123


07/10/2019 12:28 AM  
Posted By AugustinD on 07/09/2019 12:45 PM
First, isn't a reasonable interpretation of this that the HOA has been "paying the taxes," or more accurately obtained an exemption from taxes for this land, via Statute Section 193.0235? From what you wrote above, it's clear the 50 unit owners of this roughly 800 square feet of land per unit have never paid taxes on the land.

I think that's correct. The plat was approved and filed in the county's official records in early 1989. The county used that to assign parcel numbers to all lots before any construction started. They added the subdivision and the lots to the tax rolls as a condominium property because that's all their system could handle at the time. They equated each home to a "unit" without any adjoining land because, according to all the site plans that had been approved, that's how all the homes were going to be built.

The second builder didn't begin to construct the remaining 50 homes until 1995. By then, the lots/parcels had already been in the county's system for 6 years. It was only after (approximating) the 2200 sq. ft. homes were built on the 3000 sq. ft. lots that the additional 800 sq. ft. of empty land became a reality and a discrepancy was created. One that the county didn't (and doesn't) care about since the parcel had already been designated a condo unit without any extra land outside its walls.

Yes, one way of looking at it is that the HOA has been picking up the tab for 0.92 acres of private property that is not really common property at all. All 100 owners pay their own property tax which includes a pro-rated share of what the taxes on the common property would otherwise be. There are no numbers for that exact breakdown, though.

Posted By AugustinD on 07/09/2019 12:45 PM
I am looking at Florida statute 95.18 on adverse possession. Now I kind of like your chances for an adverse possession claim. I think the tax situation may play a bit of a role, if only as leverage with the owners. Note section 2(b), indicating that no fence et cetera is required. Your HOA need merely have maintained the land in question.

Hee hee.

Posted By AugustinD on 07/09/2019 12:45 PM
Second, should the county tax assessor be taxing the 50 owners of their respective land for this roughly 800 extra square feet? I am factoring in how the County way back when deemed the subdivsion to be a condominium for tax purposes. It sounds like they do not want to deal with it. But if push came to shove, so far it seems entirely possible that, at least as a matter of property tax law, the 50 should be paying more taxes than they are.

I also think the county doesn't want to deal with it at this point. It's a very unusual situation, I think. I've looked around the county and can't find any other HOA that's arranged and organized this way. The original developer had a unique vision for the community that probably sounded good at the time, but when you're a "special snowflake" it's hard to find any precedents or even someone else just to compare notes with.

Interestingly enough, the property cards for each parcel that are used as the basis for tax assessments, the square footage of each home does not come from the lot dimensions on the plat. The square footage shown is the number of square ft. "under air" that appears on the developer's floor plan for the corresponding model. That number excludes the square footage of the 2-car garage attached to each home (avg. 450 ft sq) and the screened-in porches ("lanais") at the back of each home (avg. 200 ft sq). That really reflects, I think, that the county considers the homes, for tax purposes, units of a condominium and cares not one bit about the actual square footage of the home as a whole or the platted lot dimensions.

Posted By AugustinD on 07/09/2019 12:45 PM
Third, if the HOA does not want to seek adverse possession (or um politely threaten same), I think the HOA has some leverage here in getting all 50 to, say, quitclaim the land and then agree to stay silent during a quiet title court proceeding. With HOA attorney editing, maybe the letter from the HOA could go something like this: ...

At a bare minimum, if we were to look into this further, I'm sure we'd only consider this route if all homeowners would agree to the plan. I think getting all members of any HOA to agree to anything at all is a tall order.

I like your sample letter and will consider it further. I like the idea of "you may owe more taxes but if you agree to our plan you'll never have to worry about that again." Yeah, I just read it again and I think it's really good.

Thanks for your considered and thoughtful replies.
NpS
(Pennsylvania)

Posts:3572


07/10/2019 2:09 AM  
Posted By GenoS on 07/10/2019 12:28 AM

I also think the county doesn't want to deal with it at this point. It's a very unusual situation, I think. I've looked around the county and can't find any other HOA that's arranged and organized this way. The original developer had a unique vision for the community that probably sounded good at the time, but when you're a "special snowflake" it's hard to find any precedents or even someone else just to compare notes with.

Interestingly enough, the property cards for each parcel that are used as the basis for tax assessments, the square footage of each home does not come from the lot dimensions on the plat. The square footage shown is the number of square ft. "under air" that appears on the developer's floor plan for the corresponding model. That number excludes the square footage of the 2-car garage attached to each home (avg. 450 ft sq) and the screened-in porches ("lanais") at the back of each home (avg. 200 ft sq). That really reflects, I think, that the county considers the homes, for tax purposes, units of a condominium and cares not one bit about the actual square footage of the home as a whole or the platted lot dimensions.



While the snowflake characterization may be accurate in terms of the original developer's vision, I doubt that you are that different when it comes to the way that your county assessor's office calculates RE taxes.

Here's a suggestion. Identify a homeowner's association that has no amenities. Check the tax records.
1. How many $ assessed for the common land?
2. How are assessments of individual units calculated - Sq.ft. of living space, # of bedrooms, etc. - or something else?

You might find that no $ are assigned to the open land and all of the RE taxes for the entire plat are allocated to the individual houses based on some calculation of the house's size, rooms, etc. That simple investigation might inform your decision making process.

The reason why I suggested finding an HOA with no amenities is that, if there's a clubhouse, a restaurant, or some other building that generates revenue, then the taxing authority might use that data to assess taxes to the HOA.

Not saying that this is what your assessor does, just saying that it's common practice in a lot of places.

I too thought that Augustin's letter was well crafted. I don't like the idea of a fiduciary using a veiled threat to obtain consent to gaining title to land. I think you've been leaning in that direction already, but an investigation of how assessments are done in another community could influence your thinking.


Sikubali jukumu. Read all posts at your own risk.
JohnC46
(South Carolina)

Posts:8550


07/10/2019 8:24 AM  
Geno

Please do not send such a letter especially as it was drawn up by "somebody" playing lawyer and it could really backfire. You could be shooting yourself in the foot.

Get an attorney's opinion/letter before doing anything.
AugustinD


Posts:1886


07/10/2019 1:39 PM  
Posted By NpS on 07/10/2019 2:09 AM
I don't like the idea of a fiduciary using a veiled threat to obtain consent to gaining title to land.


I agree. The letter I proposed be a starting point for an attorney's edit (or more likely, a complete re-write) needs the facts fleshed out. Without the facts, the draft is heavy-handed.

As NpS pointed out, land ownership can become contentious. Geno has indicated that the 50 owners by and large have no idea about the title to the land; taxation; liability issues; and so on. If word gets out that the HOA is going to do anything with this land, it is almost guaranteed to be a hornet's nest. Mostly because the typical HOA member does not know a board-created rule from an article of incorporation. Presentation is important.

Back to the hypothetical slip-and-fall. Suppose someone does build a patio on this land. The patio is uneven, because, the friggin' CC&Rs have zero requirements to use a licensed, bonded contractor. Someone trips and falls. The victim's attorney sends a letter to the HOA's insurer: 'Your clients were maintaining this land for decades. This led the owner to have a reasonable expectation that the HOA would continue to maintain it. The CC&Rs point to the HOA's responsibility to maintain it. The tax assessor says the owner does not own this land . What the plats say is legally irrelevant. The decades of HOA maintenance screams volumes. After all these decades, XYZ case law says the HOA has a duty... [yada]. My client demands $200,000 for actual damages and another $100,000 for pain and suffering.'

I think there is nothing like doing one's homework before going to see a real estate attorney. To me, the "big picture" facts and questions for a real estate attorney are:

Given that
-- the plats seem to indicate the individual unit owners own land outside their house's walls.
-- yet the CC&Rs seem to imply that the HOA was never supposed to have to regulate land which has no house on it yet is owned by individual owners.
-- Despite some conflicts within the CC&Rs, the HOA has, for decades, been maintaining land that the individual unit owners own.
-- the tax assessor says these 50 individual unit owners own no land.
-- the tax assessor says the HOA, under statute, pays no taxes on any common area.
-- Since the creation of the HOA, no one has ever paid taxes on the roughly 800 extra square feet of land per unit that some 50 owners appear to each own individually.

Questions:
Is there a liability problem?
Should the HOA stop maintaining this land, for at least the immediate future?
Should who has title to this land be clarified?
Or is the Board overthinking the situation?

I expect the bill will be $3000 to $10,000 for the attorney's answers to these questions.
GenoS
(Florida)

Posts:3123


07/10/2019 3:31 PM  
Of course we wouldn't send anything unless it was thoroughly reviewed by the HOA's attorney first.
NpS
(Pennsylvania)

Posts:3572


07/10/2019 4:31 PM  
There is no perfect solution. Obtaining title has its problems. Stopping services that are currently provided has its problems.

To me, the biggest issue is maintaining goodwill in an environment where homeowners can turn on you for any perceived slight.

Posted By AugustinD on 07/10/2019 1:39 PM
Back to the hypothetical slip-and-fall. Suppose someone does build a patio on this land. The patio is uneven, because, the friggin' CC&Rs have zero requirements to use a licensed, bonded contractor. Someone trips and falls. The victim's attorney sends a letter to the HOA's insurer: 'Your clients were maintaining this land for decades. This led the owner to have a reasonable expectation that the HOA would continue to maintain it. The CC&Rs point to the HOA's responsibility to maintain it. The tax assessor says the owner does not own this land . What the plats say is legally irrelevant. The decades of HOA maintenance screams volumes. After all these decades, XYZ case law says the HOA has a duty... [yada]. My client demands $200,000 for actual damages and another $100,000 for pain and suffering.'



Is there a history of slip&falls in the community? If yes, something to be considered. But if rare or never happened before, then no reason IMO to spend money on it unnecessarily. The HOA has deeper pockets and can expect to get sued no matter what. That's why they have insurance. If the risk of a slip&fall was a central issue, then my suggestion of beefing up the rules & regs would IMO go further toward minimizing the risk of injury. If a homeowner fails to follow the regs and the HOA attempts to enforce, there is a greater likelihood that liability will be on the homeowner. Regardless, that's a battle between the HOA insurer and the homeowner insurer. The HOA shouldn't attempt to pre-guess what that can of worms will look like.

Question for the lawyer:
- What's the best way for us to impose greater control on the grounds?
- For purposes of our rules & regs, can we treat all grounds the same (including the strips)?
- What's the risk if we stop servicing the strips?
- How costly could it get if we try to obtain title?

Sikubali jukumu. Read all posts at your own risk.
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