Q&A: Common-area property belongs to everyone. Board members can’t take it for themselves

Question: I purchased a detached single-family home in a homeowner association around San Clemente with a zero lot line that comes right up against the back edge of our property.

There is a permanent concrete walking and jogging path that wraps around the entire development adjacent to the lot line and backsides of every home. Our CC&Rs say it is a “common-area walkway to benefit the common interest development.” Every year the board sends out a notice stating, “Please note that it does not matter how much a common-area walkway is used or not used, it is still common-area that needs to be accessible to all owners, residents or guests.”

But my next-door neighbor, who is a longtime board director, converted a section of the path adjacent to his property to a private, exclusive-use area. He erected a permanent fence on both sides of the path, blocking access for everyone else.

I wrote the board that they must immediately restore and return that common property to its original state. The board wrote back that the fence is not “illegal”: “The owners submitted an architectural application as required per the covenants, conditions, and restrictions. The application was approved by the association’s board of directors at that time. The owners of the unit consulted with the board before they made any changes to the landscaping of the common area including any hardscape items. The unit at issue has been in place for at least five years. The board believes it is futile to pursue this type of action.”

We all want to use the path and can’t because this board director says he owns it through adverse possession. Since this board director was allowed to do this, can the rest of us do it too?

Answer: A board director has no special right to unilaterally “take” common property and convert it to his exclusive use. Neither the board nor the director can prevent other owners and residents from using the pathway paid for out of their association dues. It is also highly unlikely that this director acquired title to the fenced-in portion of the path by “adverse possession.”

Someone can adversely acquire title to property in California without permission through open and “notorious” occupation or possession — meaning fencing or no-trespassing signs might have been erected — for a continuous period of at least five years, provided that all applicable property taxes are paid.

In a similar California case, Nellie Gail Ranch Owners Assn. vs. McMullin (2016), the court rejected the owner’s adverse possession claim because he failed to pay property taxes on the disputed property.

The owner contended that the disputed property had no value, and that he was therefore excused from establishing that crucial element of paying taxes. The court ruled that a homeowner is only excused from paying property taxes as part of an adverse possession claim if the property in question is exempt from taxation. Although the defendant cited a quitclaim deed transferring the property without imposing a transfer tax, the court determined that there was “substantial evidence” that the property had a value and that property taxes were levied on it.

Common areas are designated for use by all titleholders and are part of the recorded documents with each title. The directors who approved their fellow director taking property away from all the other titleholders are likely to have acted outside the scope of their authority — and are asking for a lawsuit. For the board’s action to be legal, Civil Code section 4600 requires an affirmative vote of at least 67% of all titleholders before such an action can even be considered by the board.

It’s important to try to determine whether the director-homeowner or prior board directors took any action to hide the board’s approval of the request to convert the commonly owned property to the benefit of one director’s exclusive use. Demand meeting minutes that documented the board’s decision that the fence is not illegal and its approval of the application.

There is a five-year statute of limitations on enforcement of the association’s governing documents, which includes claims against board members, but that time can be extended if the perpetrators took steps to hide their actions, according to case law and the California Code of Civil Procedure section 336(b).

Zachary Levine, a partner at Wolk & Levine, a business and intellectual property law firm, co-wrote this column. Vanitzian is an arbitrator and mediator. Send questions to Donie Vanitzian, JD, P.O. Box 10490, Marina del Rey, CA 90295 or noexit@mindspring.com.