Legal Question in Real Estate Law in Washington

Re: Adverse possession of common area in an Association

This question has many legal implications. Can a homeowner adversely possess common area? Are the elements of adverse possession present? Has the homeonwer's association waived the right to enforce the CC&Rs by letting it go for so long?

The bottom line in my opinion is not legal, however, it is practical. Why get into a big fight on the issue? Property owners are extremely protective of even small patches of ground. The homeowners and the association should develop a long term strategic solution to the problem by pointing out the problem to owners, then inviting proposals for solutions. The solutions should solve all the encroachment problems at once and not just one at a time. Once the proposals are received they should be discussed with any eye to compromise and consensus. If the board feels strongly about getting the fences off common property, maybe it should offer to replace the fence at the proper line at its own expense. Any proposals should be dealt with first by an advisory vote to get a general feeling about how the owners feel about any given approach.

It is much better to work these out as common owners. Once lawyers become involved and the sides become polarized, the costs will start rising. I've seen people spend over thirty thousand dollars per side on these kinds of disputes. Patience and a long term plan is important. If you want to proceed confrontationally, the board or architectural control committe should obtain estimates of legal costs and propose how these will be paid and how the remiaining encorachment problems will also be handled and paid for.