Hey You! Get Off My Common Area!
By Lesley A.Z. Rigney
While association members generally possess easement rights to use and access common area properties and facilities of the association, may members store, alter, build or grow items on the association’s common area? The answer…
Unless permitted by the association’s governing documents or rules adopted by the association’s board of directors, owners cannot, without permission from the board, add items to or alter the appearance or condition of the associations’ common area property or exclude others from all or part of the common areas. Such use may be considered unlawful encroachment onto association property and can present concerns regarding maintenance, liability, and ownership of the property in question.
How does this happen? Owners may, without authorization, build a fence, plant a garden, add landscaping, or install structures (ex. solar panels, satellite dishes) onto or into the common area beyond their property lines. Sometimes the encroachment onto the common area is minor and the area encroached upon not regularly used or accessed. On occasion the owner in good faith believes that the installation or alteration made is within the boundaries of the owner’s property. Some changes to common area property may not even detract from the aesthetics of the community or otherwise run afoul of the community’s covenants or design guidelines, and thus not be immediately noticed.
When is encroachment permissible? In situations such as those described above, when the encroachment and its impact are de minimus or beneficial, there may be utility in allowing the change to remain, but only if the association’s governing documents allow and the concerns noted above regarding maintenance, liability, and ownership can be adequately addressed. Specifically, in its recorded covenants an association may possess authority to grant easements or licenses to use the common area to third parties. If the alteration made by an owner to the common area is not prohibited by the association’s governing documents or rules and the board is agreeable to allowing it remain, the board may want to consider permitting the alteration conditioned on the owner agreeing to certain terms, such as that the owner will maintain and insure the alteration at its expense and indemnify the association against any liability resulting from the alteration or its installation, maintenance, repair, replacement or removal. Any terms agreed to by the parties should be memorialized in a writing signed by both parties and, ideally, recorded in land records so that the terms thereof are enforceable not just against the current owner but future owners of the property. The board, however, must also consider whether the encroachment is being used by the owner (or is perceived by neighbors) as simply a way for the owner to essentially enlarge the owner’s yard at the expense of the community’s open space.
What to do if we want the encroachment removed? In situations where the board is not amenable to the encroachment remaining and/or it is of a nature not permitted by the association’s governing documents, the board should first check the governing documents to see what, if any, remedies the documents provide and what type of notice the association may be required to provide an owner before initiating those remedies. In most situations, demand by the board, in writing, that the owner remove the encroachment and restore the premises to its preexisting condition may be all that is needed to achieve compliance. If the owner refuses or fails to comply by the deadline provided by the board, however, then the board may need to turn to the remedies available pursuant to the governing documents or applicable law. Depending on the circumstances, these may include the levy of violation charges, suspension of owner membership privileges, removal of the encroachment and remediation of the areas disturbed (ideally, with the cost thereof charged back to the owner responsible), and/or filing a lawsuit with the court requesting injunctive relief. Before initiating any remedies, however, it is vital that the association be sure that the alteration at issue is actually encroaching on the association’s property (or area of responsibility) and, if in doubt, that the boundary line between the owner’s property and common area be determined.
Do we need to disclose the encroachment? Covenant and rule violations existing on a Lot should be disclosed in a resale packet issued for the owner’s property, but failure to disclose an encroachment or violation that exists on common area property not assigned for that owner’s exclusive use should not impact enforcement because applicable statutes do not require them to be disclosed.
How do we prevent encroachments? Know the property lines of your common area and inspect! Get a survey of the property lines, if needed, and take prompt action to enforce unauthorized installations and alterations. If voluntary compliance with a request to remove and remediate is not forthcoming, confer with the association’s legal counsel regarding available options and recommended next steps.
 In Virginia and the District of Columbia, if the use has existed or continues for 15 or more years in a manner that is open, hostile, actual, exclusive and visible, these circumstances could be used by the owner to establish a claim of title by adverse possession to the portion of the common area property encroached upon. _____________________________________________________________________________________________________________________________________
Legal Disclaimer: The information in this article is not intended to be legal advice. Legal advice must be tailored to your specific facts and circumstances and your association’s governing documents. Neither this post nor the CWMEB Journal is intended to be a full and exhaustive explanation of the law in any area, nor should it be used to replace the individualized advice of your legal counsel.