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common area encroachment

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patmc0655

Junior Member
What is the name of your state (only U.S. law)? Colorado
Our HOA president has installed 4 gardens on our common area without prior approval. One garden is in contact and adjacent to his physical property which is also the zero lot line. He is now trying to get the Board to approve that anyone can install gardens on the common area for the sake of reducing HOA expenses.

I and others are very much opposed to this as the President had years previously openly requested to extend his property line into common area with no questions asked and with no consideration exchanged. We had threatened legal action per this request to successfully stop that action.

We are now concerned that he has installed these gardens to circumvent property ownership of our common area via another route. Other board members also have adjacent common area and are in agreement with the president's behavior.

How do we stop and reverse what has taken place? Do we sue the person? So we sue the board and president or just the president?

We are concerned that we can violate our charter due to reduced common area if such behavior manifests itself further (which could be the president's and board's intent). And, as such, we are concerned that the president and board members will declare the association disbanded thereby taking over the encroached common area land.

How do we effectively deal with this?What is the name of your state (only U.S. law)?
 


usafdrew

Member
When you say 'common area', is this defined in the neighborhood covenants? Since you mention zero-lot line, I'm assuming that the garden is physically on one party's property, but directly abuting the other party's, thereby restricting access to this 'common area' entirely. Would this common area perhaps be considered an appurtenant easement to one of the parties? These details might be mentioned in the covenants. In fact, most city codes in dealing with zero-lot lines stipulate the covenants must set these guidelines.

Appurtenant easements are generally not to be developed in such a manner that restricts access. That is the whole point of them. If it stipulates such in the covenants, and unless that is changed by the HOA (or however it is specified), then although weak in enforcement, it can be used as a reference in court.
 

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