We get questions from time to time from associations inquiring about homeowners who have installed improvements around their home, sometimes with association approval, but oftentimes, without. Upon further examination, the association discovers that the improvements appear to encroach on the association’s property – open space, parks, etc.
The inevitable question from the association is “what can we do about it?” “Can we just remove it at the owner’s expense?” “Do we have to leave it?” “It looks okay, and we don’t mind it being there, but who is required to maintain it?” “What do we do now?”
Interestingly, while most people wouldn’t think about trying to forcefully, or surreptitiously take somebody else’s property from them, many won’t think twice about “ootching” and “scootching” into the association’s property – after all, it’s just open space. Besides, who will care? Or, “Besides, I’m making it look better.” However, if done without the association’s permission, these encroachments are nothing less than trespass, and there is no legitimate justification.
One of the first questions to be answered from the association’s point of view, is “how do you know that there is an encroachment?” Sometimes it is obvious, such as in a condominium association where all of the exterior is common elements; or in a townhouse community where ownership of land underneath the unit only includes the land within the footprint of the unit. However, in many cases it is difficult to tell without obtaining a survey of the property lines. Without a survey and proof that the improvements do actually encroach, the association generally will have a difficult time being able to take any action.
Once you’ve determined that indeed an encroachment exists, the next step is to figure out what to do about it. The action to take will depend on whether the association is willing to let the encroachment remain, or whether it wants it removed. If removal is the answer, then the association will need to contact the owner and see if he/she will voluntarily remove it – explain the notion of trespass. If the owner is unwilling to remove the encroachment, then legal action may be required to force the owner to remove the encroachment and restore the property to its prior condition.
Sometimes the association determines that the encroachment can remain. But that decision must be checked with the association’s lawyers to see if there is a legal basis for it. Often the answer will depend on the language of the association’s governing documents, and whether the association has the necessary authority; sometimes it will depend on the extent of the encroachment, and many times it will depend on what type of permission the association wants to give.
Depending on what the governing documents allow, permission can be given through an easement or a license, and less frequently through a lease. Whatever the form, each of these instruments should address a myriad of issues, including: the extent of the encroachment; whether there is a fee to the homeowner to allow it to remain; how long it is permitted to remain; whether it needs to be removed upon sale of the property; who is required to maintain the improvements; if the improvements are live plants, who is required to water them; who is going to provide property and liability insurance; whether the homeowner is required to indemnify the association; whether additional improvements will be allowed, and similar matters.
Disallowing encroachments can be time sensitive, so the association should be diligent about spotting them and taking action. It is also a good idea to periodically publish in the community newsletter that owners are not entitled to make improvements to the association’s property. Hopefully, with proactive action, the association won’t have to argue with the owners that what’s the association’s is not theirs.
By Mark K. Payne of Ascent Management Professionals.