HELP! A man has hijacked our common area
This week I will respond to another question from a reader.
Greetings, Mr Francis,
I am a very concerned property owner who hopes that you can advise me on a problem I am facing.
I have purchased a property (town house) within a gated community that comprises four units but I recently discovered that:
The land area between the property boundary wall and the wall of town house No. 1, a corner lot, is designated as common area. The land area is rectangular in shape and extends from the front to the back of the property.
But the owner of town house No. 1 has enclosed the common area by the construction of a gate at the front of the entrance and has constructed a swimming pool that extends significantly into this common area.
This situation was created immediately after the construction of this town house complex, more than 14 years ago, and has existed since then.
As per the Owners' Agreement, each owner has an undivided one-fourth share in land designated common area within the complex.
I consider the action of the owner of town house No. 1 to be unfair and would like to know what are my options.
Also, if he sells his property, could he also sell the common area that he has encroached on and has enclosed?
Good day, C.B.,
I certainly can understand your anxiety and trepidation based on the situation that now exists in your complex.
First, how did you discover that the land area in question is indeed designated as a common area? Did a commissioned land surveyor verify this?
If this is not the case you need to engage a land surveyor to determine if that is indeed a common area or if it is a property belonging to the proprietor of town house No 1.
However, for the purpose of your question, I will assume that you are correct in your determination as to the designation of the common area and respond to your query as such.
The designation given to the property of common area is just that. It is to be an area that is shared equally by all the owners of units in the complex.
A common area is, in real estate or real property law, the "area which is available for use by more than one person".
The common areas are those, "within a property that are available for common use by all tenants, (or) groups of tenants and their invitees".
The very definition of the common area and what it represents makes what the owner of town house No. 1 has done inequitable and just plain wrong.
The fact that the area is designated a common area means that everyone is to have equal access to the space and it is to be for the total enjoyment of all the owners or their invitees.
The common area is to be shared by all the member of the complex and the one-fourth share in the property that each person has is not an amount that can be divided and surveyed and marked for the use by one person.
That is, one person cannot subdivide the land into four and say that he will be responsible for his one-fourth share. That's why it says undivided shares.
That being said, the property owner at town house No. 1 has no right to fence the area and put a gate on to prevent others from the complex from using the area.
He also is not at liberty to construct anything on the common area that would be for his sole use and enjoyment, as it is a common area for the use of all. The section of the pool that encroaches on the common area is for use of all in the complex, as legally you have a one in fourth undivided share in it.
I will continue next week as to actions that can be taken and also shed some more light on these gated communities and the laws that govern them.
Keep sending our questions and comments and let's continue to explore A Matter of Land. Until next time, traverse well.
- Craig Francis is a commissioned land surveyor and managing director of Precision Surveying Services Ltd. He can be contacted for questions or queries at email@example.com or Precision Surveying Services