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Attorney 1
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Category: Real Estate Law
Satisfied Customers: 2573
Experience:  Knowledgable and Experienced Attorney
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I am currently in a neighborhood with an hoa association.

Customer Question

i am currently in a neighborhood with an hoa association. there was a property easement shown on my survey. however, when i bought the home the prior owners did not pay any attention to the survey and planted trees, etc. that i am taking care of. now i would like to add two feet to my patio where these trees exist already and they won't allow me to do this on top of that, when bought the home there was a fence that extended all the way round the yard, at least 10 yards away from where they say was an encroachment but still exists. would i be wasting time if i hired my own surveyed and found out just how much of an encroachment this drain line affects the common area? ii naturally assumed that if all of this was already done around the property, there wouldn't be a problem. i am willing to pay anything to get this done. it really isn't fair. any suggestions?
Submitted: 1 year ago.
Category: Real Estate Law
Expert:  Attorney 1 replied 1 year ago.
Hello, and welcome. I am a licensed attorney and happy to assist. These are good questions, and I'm glad you asked. There are several potential options/solutions. First, it is important to determine who owns rights to the easement and the purpose for which the easement is intended, and further determine whether the easement has been abandoned by the holder. Every state has different laws regarding the subject, so if you let me know your state, and some details about the easement, I will be able to let you know more. Certainly, if the easement has been abandoned, if rights were waived, or if what was once an easement by necessity has been extinguished by the cessation of the necessity, you may have a right to put in that fence you're interested in. If the easement is owned by the association and they permitted the trees, or did nothing about the trees, either when they were planted or afterwards, the Association may be deemed to have waived its right to use the property as common area. This is very similar to yet another option that may apply, which is obtaining the property deemed an encroachment by way of adverse possession. Adverse possession laws differ in each state, but it is essentially a law providing that if somebody trespasses openly on property of another for a particular period of time provided by statute, that person can obtain ownership rights to that land. Again, if you let me know some more details and your state, I can help you determine whether you may have adverse possession rights. In any event, obtaining a survey to find out if there is an encroachment (and thus you may have vested rights) or if there is not really an encroachment at all (and this you may have ownership rights) is never a bad idea if there's a question. Either way, peace of mind is money well spent. I hope this helps. If you need additional information or clarification, just let me know. If I have addressed your issue and/or pointed you in a positive direction, please let me know that, as well. Also, please remember to leave a positive rating when prompted, as that is the only way attorneys on this site are credited for the help we provide​. Good luck! Best,Attorney 1
Expert:  Attorney 1 replied 1 year ago.
Please let me know if there's anything else I can do for you. I'm here to help. Best,Attorney 1

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