What is HOA Involvement on Encroachment? (2024)

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Encroachment is a word you may hear pop up during board discussions, but what is it exactly? Essentially, encroachment means going onto someone else’s property without their permission. This is most often seen in HOA communities in the form of a person’s garden, fence, patio, or other additions crossing their property line, no matter how slightly.

Are Encroachments Ever Permissible?

Minor encroachments are sometimes permissible, and are generally addressed in the HOA CC&Rs. One example is an overhanging roof on a zero-lot-line house, which is where a house is built on a long, narrow lot where one wall of the house sits on the property line. However, permissible encroachments vary by community, and all exceptions should be documented in the governing documents (and will likely required board approval).

When Encroachments Cross the Line … Literally

Even if you are lucky enough to not to get caught by your neighbor, or caught and fined by the HOA, encroaching beyond your property line can get you in trouble down the road. This is because when it comes time to sell your house, you will have to disclose any encroachments to the potential buyer. If anything is found to be encroaching on common ground, or on your neighbor’s property, you will likely be responsible for removal or alteration of the thing in question, whether that is a fence, garden, patio, or tree. This will likely be costly and could delay the sale of your home.

Additional problems could arise if there is an encroachment onto your property by a neighbor. For this reason, it is not good idea to ignore an encroachment from a neighbor, even if it doesn’t really bother you at the time.

Remedies for Encroachment

Fortunately, there are remedies for encroachment, and they may be simpler than you think! Begin by knowing the exact boundaries of your property. As the saying goes, knowledge is power. You don’t want to start a battle with your neighbor, or your HOA, over mistaken boundaries. You could consult your original land survey or, if necessary, have a professional land survey conducted. This can help ensure that each property owner understands his or her boundaries.

If the encroachment does indeed exist, start by simply discussing the encroachment with your neighbor. This could go a long way toward solving the problem. They may be able to move the structure or come to some other agreement. For example, you could give them written permission to use your property or you could sell the encroached-upon property to them.

If all friendly discussions fail, consider going to the HOA board to see if they can solve the problem. As a last resort, going to court may be your only option to get rid of an encroachment. Keep in mind that property disputes can get costly and messy. Be sure to work with a knowledgeable real estate attorney if your journey comes to this.

Common Area Encroachment

Another type of encroachment that is typical in HOA communities is an encroachment into the common area. Acceptable common area encroachment varies greatly from community to community.

In some associations, owners are allowed to plant a garden in the common areas when approved, while in others, this is unacceptable. In some communities, an owner may be allowed to build a fence that extends slightly into the common area (but not into their neighbor’s property), as dictated in the rules and regulations regarding architectural modifications. However, the same action may not be allowed in other communities.

Consider the following examples:

• A homeowner plants a garden on the side of her house. Over time, the garden grows and eventually encroaches into the common area. In this situation, the HOA could see the encroachment and notify the homeowner of the infraction. They may require that the garden be removed from the common area.

• A homeowner sees her garden start to spread to the community park next to her home, so she approaches the HOA for permission to extend her garden slightly off of her property. After reviewing the petition, the HOA Board grants the homeowner express written permission to use part of the common area for her garden. This example ensures the homeowner’s beautiful garden, which she has tended to carefully and has so much emotional attachment to, is not at risk of begin taken away.

• A homeowner has installed a pool in his backyard and decides to fence the perimeter of the pool for safety precautions. However, he sees that his desired fence may encroach on his rear property line. The homeowner approaches the HOA board with plans to erect a fence around his property, and the proposed fence will encroach into the common area by one foot. Upon review, the HOA decides that the encroachment is too big, but offers a different solution for the placement of the fence. Rather than building the fence and then having to remove it after being fined by the HOA, he works with the HOA in order to find an acceptable solution, saving himself both time and money.

The bottom line in every case is that the homeowner must receive explicit permission from the HOA board before taking any action that may result in encroachment onto the common area. This is to protect both the homeowner and the association.

Related: What is Horizontal Property Regime?

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   Bev SchweitzerJuly 30, 2019 at 6:28 pm

   HOA to be joined by everyone. Are we in trouble not joining? What are Arizona state laws that can avoid this? Been here 23 yrs. & blocked from a voice.