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Dwayne B.
Dwayne B., Attorney
Category: Real Estate Law
Satisfied Customers: 32151
Experience:  Began practicing law in 1992
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An HOA member is living next to a piece of HOA property.

Customer Question

An HOA member is living next to a piece of HOA property. They have been taking care of it but have been paid for some of those years. They are trying to possess this track of land they have built on without HOA permission thru "adverse Possession". The new HOA Board is receptive and appreciate their political help therefore are trying to get this piece of land into there possession. I feel we are loosing out on our HOA property that has great value. What are our rights to stop this "giving" when I am offering "$20,000 for it to turn it into a park for all to enjoy"? Help?
Submitted: 4 months ago.
Category: Real Estate Law
Expert:  Dwayne B. replied 4 months ago.

Hello and thank you for contacting us. This is Dwayne B. and I’m an expert here and looking forward to assisting you today. If at any point any of my answers aren’t clear please don’t hesitate to ask for clarification. Also, I can only answer the questions you specifically ask and based on the facts that you give so please be sure that you ask the questions you want to ask and provide all necessary facts. Please note: This is general information for educational purposes only and is not legal advice. No specific course of action is proposed herein, and no attorney-client relationship or privilege is formed by speaking to an expert on this site. By continuing, you confirm that you understand and agree to these terms.

What state is this in?

Customer: replied 4 months ago.
Expert:  Dwayne B. replied 4 months ago.

The WA law on adverse possession changed back in 2011 so you will likely want to visit with a local lawyer that does Civil Litigation and discuss this in detail. I don't have access to the actual pre-2011 statutes but since the adverse possession is 10 years this obviously will cover both the old law time period as well as the new law.

To stop the board from taking an action the only thing you can really do, other than objecting at the meeting, is to file for an injunction from the court. Yo will want a lawyer to handle that as well since injunctions are extremely complex.

The steps to an injunction are:

1) An Application for TRO (Temporary Restraining Order) is filed along with supporting evidence such as affidavits. Usually the Application for Injunction is made at the same time. The TRO is a temporary measure and is not absolutely required before you get an injunction.
2) An Ex Parte (without the other side present) Hearing is conducted and the judge either issues the TRO or denies it. If the TRO is issued the judge orders a bond set in a sufficient amount to compensate the other side for any damages accumulated while the TRO is in place if the applicant fails to prove their right to an injunction.
3) A hearing on the TRO is set.
4) The TRO and notice of Hearing is served on the defendant.
5) The defendant should immediately begin following the judge's orders.
6) The TRO hearing is held and each side has an opportunity to present evidence and question witnesses.
7) The judge makes the decision on whether to convert the TRO to a Temporary Injunction or not.
8) If the TRO is converted to a Temporary Injunction then the judge sets a new bond to be in place.
9) Discovery is conducted by both sides.
10) A request for hearing date is made on the matter of converting the Temporary Injunction into a Permanent Injunction.
11) The hearing/trial is held on the Permanent Injunction and the judge issues a ruling.

These are what are known as extraordinary remedies and the procedural rules for these as well as the case law are EXTREMELY specific and difficult. If ANY mistakes are made the judge has no choice but to deny the relief and will not likely reconsider it in the future.

Just as an example, getting injunctive relief, both temporary and permanent, requires that evidence be offered of:
1) An immediate need,
2) Which, if not granted, will result in irreparable harm,
3) With no adequate remedy at law, and
4) (on temporary order) The person requesting the injunction is likely to succeed at a full trial on the merits.

If evidence is not offered to meet these four requirements, in a manner that the judge knows this is what the evidence shows, then the petition will be denied.

There are more requirements than this depending on the exact facts of the case but it is very, very easy to mess up one of these and end up having to pay damages to the other side just because your paperwork wasn't done properly.

This lawsuit can be combined with one to oppose the adverse possession and to have the court order the other person to stop doing the things which allow them to make a claim against the property. You can also recover your attorney's fees against the HOA and against that person if you win, and I don't see any reason you shouldn't win from your facts.

If your question has been answered then I'd offer my best wishes to you and ask that you please not forget to leave a Positive Rating so I receive credit for my work.

Of course, please feel free to ask any follow up questions in this thread. I want to be sure that all of your questions are answered. In addition, once you issue your Positive Rating the question will lock open and no longer time out so you can come back to it anytime in the future if you think of any follow ups.

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