Can an HOA make me move a fence?

The fence surrounds a pool. They claim the fence is on the HOA common area. The fence was in place for the last 15 years. There was nothing discovered by the title company of HOA actions (HOA has just recently started to enforce some of the rules).

Asked on November 4, 2015 under Real Estate Law, Indiana


SJZ, Member, New York Bar / FreeAdvice Contributing Attorney

Answered 5 years ago | Contributor

Leaving  the factual issue aside for the moment--i.e. if it is or is not on HOA property--IF the fence is on HOA common property, then they could require you to move it, even if it was there when you bought the property (and even if they only "recently" started enforcing the rules), UNLESS you can claim the land it is on under "adverse possession." If the fence was on a private homeowner's land, in your state, you'd have a reasonable claim for adverse possession, based on the length of time, the fact that the "taking" of  the property is obvious, and that you "took" it based on a reasonable belief it was yours. However, matters are complicated with common areas and association land, so you may not be able to claim the land the same way.
Getting back to the factual issues: you don't have to take their survey or claim at face value. You can refuse to move the fence on the grounds that you reasonably believe it is on your land and force them to sue you to try to get the land and the fence moved. In court, they'd have to prove that it was your land; you could present you own surveys, title documents, etc. showing it is not; and a judge will decide who is right. You could also counterclaim for adverse possession.
Given that there is a fair likelihood the HOA will sue, and that the adverse possession issue may be complex--and also that you will likely have to commission a new survey to defend your claim--you are advised to begin consulting with a real estate attorney to lay the groundwork for your defense of your land and fence.

IMPORTANT NOTICE: The Answer(s) provided above are for general information only. The attorney providing the answer was not serving as the attorney for the person submitting the question or in any attorney-client relationship with such person. Laws may vary from state to state, and sometimes change. Tiny variations in the facts, or a fact not set forth in a question, often can change a legal outcome or an attorney's conclusion. Although has verified the attorney was admitted to practice law in at least one jurisdiction, he or she may not be authorized to practice law in the jurisdiction referred to in the question, nor is he or she necessarily experienced in the area of the law involved. Unlike the information in the Answer(s) above, upon which you should NOT rely, for personal advice you can rely upon we suggest you retain an attorney to represent you.