Advice Needed - Neighborhood Association:

I'll try not to get too long-winded here about what is going on, but I'm looking for opinions & any advice on the matter - it involves our subdivision of 38 homes. There is a guy that lives in a home that backs-up to an area of our neighborhoods' wooded areas, & he is basically claiming two acres that are clearly ours, are his. So the neighbor (in our development) whose property backs to this other guys' property, is suing this guy for taking two acres that are not his. So the dude who is claiming it is his two acres, has hired his own attorney & is challenging this suit so he can keep the two acres.

SO, our neighborhood association is now backing our neighbor & assessing everybody multiple times already to pay for the attorney's fees to get back the two acres that are ours. It's now our subdivision vs. this dude who is trying to take over the 2 acres that have never legally been his. He claims that since the 80's he has been "maintaining" this two acres by trimming trees & vines, picking up garbage, & running off people who are back there dumping trash, etc. This is his claim - I just read a deposition where our attorney was grilling him. So now we are on our 3rd assessment - all told around a grand per 38 households in our neighborhood. Some of the neighbors are saying they are not going to pay any more assessments to support this suit - I have also decided not to pay any more. The association is saying that if you refuse to continue paying these, that they will be forced to place a lien on those who do not pay. So you won't be able to sell your home if there is a lien on it until you clear it up - pay the assessments.

Now, nobody can clarify, but if our subdivision WINS the suit against this guy (the guy trying to appropriate the 2 acres), will this guy have to pay back all our legal expenses incurred & all 38 of us get refunded? And if we lose the suit & the guy retains the 2 acres, then we spent a bunch of $$ for what? The principle of it all? This could drag-out for several more years, & there are no damages claimed by either side - it's just basically a pi$$ing match now. The only people happy here are the attorneys who are making their $$ per hour. Also, if we win the suit & it is ruled this clown has to pay back our legal fees & he doesn't have the means to do so, then what? He may be uncollectable.

What would y'all do?

I would ask where the real owner was during all this.....

He claims that since the 80's he has been "maintaining" this two acres by trimming trees & vines, picking up garbage, & running off people who are back there dumping trash, etc.

It's property of the association: Correct?
He states he's maintained the property for 20+ years:
If no one has ever "confronted" him about his activities on the property:
i.e. claimed he's trespassing, posted any signage, or has been "active" on said property,
he can claim Eminent Domain after those years.
Attorney fees by association are "passed" to tenants: probably stated in the NA agreement.
I believe the burden-of-proof is on him to prove his claim has never been challenged for so many years.
Could drag on for years to come.

If I understand what you're saying correctly, he's trying to take two acres of "your" land through "Adverse Possession".

Real estate laws are different in every state.

https://www.bankrate.com/real-estate/adverse-possession/

https://www.nolo.com/legal-encyclop...y-based-adverse-possession-missouri.html



I know that it used to be that when someone maintained a property without ever asking permission and the real property owner never spoke to them about it was when it was granted.

If you ever discussed his maintaining it though the years and you gave him approval to maintain YOUR property that ends his right to claim title to it.
You were simply giving him permission to cut YOUR grass because it made his property next to it look better.
At least that's what I was taught when getting my real estate license in MO about 30 years ago.

A local real estate lawyer is who you need to talk to about it.

I thought they also had to be paying taxes on it as well.
it isn't enough to maintain the property, but they have to show they kept it up to date with the .gov too.

I think this is an hoa type thing,(which I hate) and that makes voting the only way you are going to get out of this.
you would have to get enough people out of the 38 to back you in the next meeting to get them to stop this crap and let this guy "take" the land.
otherwise you will be out the legal fees, or rather you should be prepared to be out the legal fees.

I'd need to see a survey. If the 2 acres weren't mine and I was in the sub, I wouldn't pay either. Why can't every person part of the 38 just say "yeah we cut, cleared trash, and maintained too"?

I am confused. Whose name is on the deed for the contested two acres? This appears to be a case of attempted adverse possession and every state is different.

Does the county assessor have records of the legal description of the properties in dispute? Does the title company?

Is the guy saying that the records are wrong because he has been taking care of the property or does he not know where the boundaries are? If he is trying to take over the property, it seems that it would be very hard for him to prove that he was the only caretaker of this property. Like the poster above me says, everybody or anybody in the subdivision could claim they are also caretakers of the property.

As far as getting out of paying legal fees, I thought that was included in the HOA fees, but maybe not. See if there is anything in the covenants. You may not get out of paying the fees, but if any of the above works it could lead to a quicker resolution and hopefully lower fees.

I am sure that those two acres of what appears to be the neighborhood's community property has had maintenance done to it by the HOA, there should be records of that. Said scammer probably has no records. Tell your attorney to get off his ass and quit milking your HOA and to counter sue the thief for legal fees, stress, emotional impact, etc. Put a lien on his property, force a sheriff's sale and make him homeless as he deserves.

Do you know why your Association has joined the suit?

Does the Association have meetings with their attorney present in order to keep the members up to date and can you ask questions?

And if the Association should win the suit, can they then sue the member for costs? If so, and should he not be able to pay, can a lien then be applied to his property?

At least some of the answers to your questions would vary state by state and would depend on the particulars of your Association's rules. Your questions and concerns should be addressed by your Association's attorney.

Our sub began construction around 2003 - that's when the first home went in - our builder purchased this chunk of land not long before 2003 with intent to develop it. All of our lots are around an acre. Prior to that, someone owned the land - it was wooded & just scrub - nobody had ever built on it. So this guy moved into his house in the early 80's which backs to our land, & that's when he claimed to start "maintaining" the 2 acres. *The land he is claiming to be his, he knows is not in his original property lines. The land is way in the back of our sub's property - you can't even see if unless you wade through a bunch of woods behind one of the neighbor's houses. We have a bunch of heavily wooded property on the south end of our development - people are back there riding dirt bikes, ATV's, etc. There is no fence surrounding the property. So this two acres he is trying to appropriate - the previous owner back in the 80's probably never even knew he was "using" it.

Who ever holds the deed to it and has been paying taxes is the owner. This guy has been trespassing on private property. Get a survey and post the line. Just because he chose to develop and maintain someone else's property without permission does not make it right or his.

It's too late now with lawyers involved but it seems like the simplest solution would have been to fence it in and if he claimed it was his it would turn into here's our land title or deed, here's the property line for what we bought and been paying taxes on, here's the fence around it.

I would like to see a copy of the actual survey in question?

Any property will have geographic boundaries specified; if the boundaries are in dispute, call for another survey.

So the builder responsible for the subdivision bought this property prior to the subdivision? And it sounds like the builder is the HOA? This is sounding more and more suspicious. I would look up the plat of the subdivision. If these two acres were subdivided as part of the subdivision into lots, it is no longer considered raw real estate (at least in ND). If the two acres are NOT in the subdivision plat but are simply owned by the builder, why is the HOA involved at all? What responsibility would the HOA have concerning property that was not in the subdivision?

I know this isn't really helpful but let someone go get injured on the property and THEN see who wants to claim ownership.

As stated above, who is paying taxes on the property? THAT is who the owner is, and if it is proven that person does not own the property then they should be reimbursed for the taxes they have been paying by the true owner of the property!

Where I live he would be correct. I'm also squating on part of the HOA land. It wasn't intentional as when I had my fence put up I marked the property lines. They pretty much put the fence where it was easiest. That said, the HOA even sent someone out and they okayed it. I also have a long run into the woods out my back gate that I have been maintaining for 25 years. Technically, yeah, I could claim it legally but what a hassle. I go by the live and let live. I maintain their property and they let me use it. Same with my neighbor. He marked his lines but never mowed his backyard that backed up to my sideyard. I simply told him I realized the land was his and would he mind if I mowed it. No problems. My yard looks slightly bigger and nicer but yep, it is his land. Wouldn't think of being a #()K.

If a person is already using, enjoying and maintaining land that is not legally theirs, I'm not sure why they would want to claim is as theirs. Nothing would change except then they would have to pay tax on it each and every year thereafter.

They're planning to sell it.

Ah, sure hope the potential buyer orders a thorough survey and title search.

Likely the attorney has the records from the planning approval process that created the "common area".
There should also be reference to the HOA either in the files of the planning process, the jurats on the recorded map, and perhaps even the deeds themselves.
Those documents likely spell out how the area is to be administered. i.e. maintenance and liability is shared equally. If there is memorialization of an "association" I'd read that carefully. If it's non functioning, it should get up and running and meet at least once a year.
It sounds like your "common area" (or residual parcel) has become the typical pita that most become.

I'm not a lawyer nor is anyone else here I am guessing. But it sounds like one of those legal situations that causes people headaches and lines lawyer's pockets.
https://www.nolo.com/legal-encyclop...y-based-adverse-possession-michigan.html

You’d need a contract with this guy saying who is to pay attorney fees in order to collect any. Of course nobody in your hoa has such a thing.

Sounds like nobody is claiming damages so it’s not like a court will up and declare the winner gets say 50k and it washes the legal costs out.

The real reason to fight this is because your neighborhood may not be pleased with what is built on it once he gets title and sells it off.

You have to watch for this kind of stuff. In many states, 7 years of open and hostile use opens the door to adverse possession.

Probably have to vote out the hoa board or see if by laws allow you to force some sort of vote among the owners to take or not take a given action.

38k seems really high for a lawsuit like this. There really shouldn’t be much discovery to dig through and likely a survey that wasn’t very much. I’d be questioning the billable hours and maybe see if the hoa would replace the attorney. Do they have a senior partner involved where a real estate specialist would be better suited?

Most states require him to post his intent as a matter of record, ie in the newspaper, wall street journal, some public printed record. In our state 7 years, and posted it is his. If anyone at any point gave him permission to do it, does not need to be in writing but they must testify, he gets nothing. So it is wise to tell all neighbors hey you can mow my grass anytime, ends that bullsheet. Send every adjoining neighbor registered letter giving them permission mow your property, never say maintain.

Not a lawyer, yet have experience designing and developing land from both the developer and government side.
I don't know the MI laws, yet there is a good chance the lands in question are considered quasi governmental as it is held in fractionally by all the owners in the greater boundary. Ever see someone build a private swimming pool in the open space of a condo or other planned development?
The lawyer should access the subdivision planning docs and the legal map or record. In there he may find the anwser. My experience is adverse possession requires several triggers that may be impossible under the joint ownership of a hoa.
I would certainly ask for the "trespasser" to be levied legal fees.

The county assessor has been charging property taxes for those 2 acres to someone all these years. Who's name is on that tax bill?

I'd like to know that too. So far, nobody from our assoc. has talked with me about that yet.

UPDATE: I was inaccurate on my original description of the situation - I just got more details from one of the board members (I DO NOT want to be on our board either BTW...). Turns out there are TWO parties - they live next door to each other - these are the people not from our sub - they have filed suit against our association in an attempt to appropriate the two acres they are claiming is theirs via adverse possession. We do have a real estate attorney defending us - our title companies have refused to defend this for us. Allegedly, if we did not answer their suits within the given time frame, we would have lost the land to them. If we roll-over & let them take the land, sounds like there are other homes that back to our commons areas that will also move-in to take a chunk of our land. Also, since they filed suit against our association, ALL of the families in our neighborhood are being sued. Several of our board members have tried to talk to these people, & they are not interested in talking - it's their way or the highway.

With all the loopholes on both sides of the issue, it sounds like a no-win situation for either side. Only winners will be the attorneys. What a F-ed-up situation! WTH is wrong with people?

Your neighbors trying the adverse possession thing are crooks, plain and simple, IMO.

Your HOA board are a bunch of lazy knuckleheads for not stewarding the assets of your association.

Good luck as you are correct, attorneys win on billing.

Okay, this seems pretty simple. This was a subdivision of 38 homes. A survey map/plat map/subdivision map would most likely have been made and filed with the appropriate agency (here, it's the County Clerk's Office). This would clearly define the boundaries of the lots, any common grounds owned by the HOA and of course the exterior boundaries of the entire parcel being subdivided. THIS alone would preclude and nullify any claims the neighbors had on the property. Any real estate attorney will tell the HOA to have the common property lines (the lines common with the HOA and the neighbors) restaked, which would clearly show the common boundaries in the field. The real estate attorney will also mention that in most states, the burden falls on the claimant; in this case they could make no claim as there is a subdivision map which clearly defines the common lines, even if the common lines aren't evident in the field. They can cut the grass, trim trees, build a shed, whatever, on those two acres and the bottom line is, they've been trespassing for 20+ years.

This is what I've been trying to say. How does the plat address these two lots? If they are not part of the subdivision why is the HOA becoming involved? Who actually owns the lots? Is the HOA authorized to assess members in this manner? A trip to the county recorder and a little sleuthing would answer a lot of questions. But to just keep cutting checks for a fight you may not have a dog in?

Get a surveyor and shoot that line. Post it every 50 feet no trespassing. Put a fence up just do something.

1- Get the line set.
2-Post it.
3-Fence it.
4-Take pictures.
5-Set cameras up.
6-HOA sends registered letters to the trespassers.
7-HOA files a trespassing complaint with the police.

These items will cost very little to complete. The trespassers will have no say as they can not show ownership. The HOA has the upper hand at this point. Laying down will just give them an advantage. You cant waste time with these kind of people. Taking action on your own rights will make them think. What are they going to do? Call the cops. Also have the legal description and ownership proof available in case they do try calling the cops. Right now you have the right to keep them off. The police as a rule will not want to be involved. However they should be able to be on the side of the legal tax paying owners.

There is a good chance the hoa is set up in a way that the tax for the "common" area is distributed equally on all the parcels occupied by homes.
There is an equally good chance MI law says no adverse possession can be demonstrated on property that has had it's tax payed.
If there has been no nusiance (trash, weeds, homeless camps, etc.) on that area and it is basically green-belt or riparian reserve the hoa lawyer may be milking the hoa. My gut feeling is the case should be tossed and damages should be sought from the claimant.
Again, the planning process files and the recorded map are a start.

that seems like the most obvious answer. At the same time if this guy has been doing it all those years why did no-one ever tell him he was trespassing before on these 2 acres.

read Michigan law regarding adverse possession.

https://michiganrelaw.com/2021/01/1...stablish-adverse-possession-in-michigan/

I am not an attorney, but it seems to me the scammer fails to meet the requirements.

Seems to me the HOA's attorney either doesn't know the law or is milking someone.