Can an HOA make me move a fence?

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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

Answers:

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.


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