An encroachment is where an owner intentionally or unintentionally places an object (e.g., a fence) or structure on the property of another person.

Is Self-Help the Answer?

When evaluating an encroachment, the first consideration may be to simply remove the encroaching structure.  After all, the association has exclusive jurisdiction over the common area and, in most cases, the right to enter upon an owner’s property to correct CC&Rs violations.  Plus, removing the structure avoids having to file a lawsuit and is seemingly quicker.  In California, however, courts discourage using self-help to remove encroachments or reclaim land. Indeed, taking such action is fraught with risk and creates significant exposure to liability.  Thus, the association board should thoughtfully consider such risks before proceeding.  Along those lines, the association’s legal counsel should be consulted to evaluate the association’s ability to employ self-help and remove an encroaching structure without court intervention.

Associations Should Act Promptly In Seeking The Removal Of An Encroachment

Generally, if an association waits too long to resist an encroachment, the encroaching party may acquire a property interest to which he or she would not otherwise be entitled.  The association’s rights in this regard will depend on a number of different factors, including the nature of the encroachment, its location, and the type of encroaching structure.  Nonetheless, the association should act promptly in seeking to resolve the encroachment issue – waiting too long to act could result in the association having to forfeit certain legal rights and/or property interests.

Consider Offering A License Agreement As Part Of An After-The-Fact Architectural Review Process

Encroachment disputes can lead to litigation, which can be stressful and expensive for the community.  Obviously, the nature of the encroachment will dictate whether litigation is necessary.  If the encroaching structure is harmless, the association should consider offering a license agreement to the encroaching owner as part of an after-the-fact architectural application process, and the license agreement would be a condition to any architectural approval granted.  The license agreement would offer several benefits, including preserving the association’s rights; requiring immediate removal of the encroaching structure if a need arose; binding future owners of that property benefitted by the encroachment; holding the encroaching owner responsible for all damage caused by the structure; and, requiring owner to be responsible for the workmanship of the structure and any permits and/or governmental approval.

A license agreements can be an effective tool for a homeowners association seeking to resolve an encroachment.  The association board should consult with legal counsel regarding the license agreement concept and determine if the license agreement is well-advised.  If so, legal counsel should also be consulted to determine if the agreement needs to be approved by the membership.  In some cases, the board may not have authority to grant an owner exclusive use to a portion of the common area. Nonetheless, offering a license agreement can provide significant benefits and cost savings to the community, especially if it obviates the need to file a lawsuit.

Consider Implementing An Encroachment Policy

Proactively, associations should consider adopting an encroachment policy and/or amend the CC&Rs to address several issues.  First, the policy should set forth a notification procedure wherein the association identifies the encroachment and requests removal of the encroachment.  Second, upon receiving the initial notification, the owner has the option of complying or disputing the encroachment.  The response must be submitted within a certain amount of time (e.g., 30 days).  Failure to respond results in the acceptance of the association’s conclusions.

Third, if a dispute arises, the association would retain a surveyor to perform a survey of the boundary line.  The costs would be split based on whether the association’s initial determination is correct.  Fourth, if an encroachment is established and confirmed by the survey, the owner agrees to promptly remove the encroachment and restore the property.  Fifth, the policy should outline the enforcement options of the association should the owner fail to comply.  Finally, the policy would require any encroaching owner to waive all rights to the common area to which the owner would not otherwise be entitled under the CC&Rs.  

While the foregoing approaches are not necessarily the most aggressive, all offer significant benefits to an association that desires to seek peaceful compliance and avoid litigation.  Moreover, if implemented correctly, all approaches will likely strengthen an association’s position in seeking the removal of the encroachment if litigation cannot be avoided.