Can I receive adverse possession over land if state allows it, but homeowners' association doesn't?

Homeowners' association rules trump state law in an adverse possession situation.


I live in a gated suburban community governed by a homeowners' association. The association ensures common aesthetics, regulations, and services to all the residents. Part of the homeowners' association agreement states that no homeowner can claim adverse possession over land by another homeowner. I've lived there for twelve years. For all of that time, I’ve been planting trees towards the back of my yard on land that, technically, is owned by my neighbor. However, he’s never said anything about my planting of the trees or my regular presence on his land for pruning and maintenance. In our state, the statutory period required for adverse possession is ten years. Any chance I can make a claim to acquire title to that portion of his land, despite the provision in the homeowners' association agreement?


In a normal situation, you would have met all the requirements of  adverse possession  – namely that your use of the land is hostile, open and notorious, exclusive, actual, and continuous for the period required by your state's law. Courts have expressly held that  planting trees  and gardens is a form of possession and occupation of land, especially if you are regularly caring for those plants.

The problem, of course, is the homeowners' association agreement, which both you and your neighbor signed upon moving into the neighborhood. This agreement is essentially like a contract between yourself and the association: You get certain services from the association, but you also give up certain rights that you would have if you lived elsewhere. (Often, in gated communities like yours, plots of land are precisely the same size, and the goal of the association is to maintain parity between the properties as well as civility among the neighbors. This might be why your association bans claims of adverse possession.)

You might try to argue that your neighbor should be subject to adverse possession claims like anyone else. However, he could defend that claim by arguing that he was giving you implied permission to plant trees on his land, since he knew that under the homeowner’s agreement, you could never acquire legal title to his property. In other words, he was relying on the association’s protection.

He could further challenge your right to sue for title at all, given that you essentially waived your right to seek title by adverse possession under that same agreement. Indeed, a person can waive his or her rights by contract, and you would have a difficult time establishing why the homeowners' agreement should not be honored.

Moreover, you should consider the practical ramifications of suing your neighbor in this situation. Not only would it create tension with your neighbor, but it would also create tension with the homeowners' association, since you’re effectively trying to bypass their common regulations.

You might be better off simply continuing to enjoy your trees, since your neighbor does not object to your use of his land. The hostility generated by a lawsuit might be more costly and troublesome than it’s worth.

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