Adverse Possession and Community Associations

There are several ways to acquire ownership of land.  The most common form, of course, is by purchase.  A buyer and seller enter into an agreement, and at the closing of the transaction title is conveyed to the new owner. But there’s another way to get land—without an agreement and without consent.  It’s called adverse possession.   

In Nickell v. Southview HOA, the owners purchased a lot in the subdivision in 1989. At the edge of their lot, shrubs and trees marked what they thought was the boundary of their lot. For many years the owners maintained the vegetation and even installed a sprinkler system.  Years later an adjacent owner surveyed their property. The surveyor found that the shrubs and tress maintained by the owners was actually on the HOA’s property.  The Washington Court of Appeals found that the owners had present sufficient evidence to establish a claim of adverse possession.

In a Maryland case, the court also found that owners in a subdivision acquired common property through adverse possession.  The HOA was created in 1959.  Much of the draw to the community was beachfront access.  The HOA common property included the strip of land between the water and the subdivision, and all owners were authorized to use the area.

The lots of most of the beachfront lots were marked and bounded by trees and shrubs. However, after a hurricane most of the vegetation was destroyed.  Several owners then built bulkheads, or retaining walls on the front of their property.  However, the bulkheads were actually constructed on the HOA’s common property.  The court found that the owners had title and ownership of the common property where the bulkheads were built.

Here’s what adverse possession requires:

1. Actual use or possession

2. Open and notorious

3. Exclusive

4. Hostile

5. Continuous

6. At least 10 years

If your association comes across an adverse possession claim, consider your options.  The association may demand removal of a fence or other improvement built on common property. If the owner refuses, the association would file a "quiet title" lawsuit.

The association could possibly enter into an easement agreement with the owner. The owner would be obligated to maintain the area and assume all liability for their use.  Another option is selling the portion of the common property which an owner claims they adversely possess.  These options often required a vote of the entire ownership.

In any event, consult qualified legal counsel to discuss the association's legal rights and options.