Strangers Using Common Ground by Lake

by Frustrated!

Visitor Question: I want to know do you have any suggestions on how to curtail this problem? We are one of 10 homeowners along a small lake in Illinois. For the past 9 years homeowners have lived along the lake and enjoy quiet peaceful use of a 20 foot wide stretch of land along the lake that is HOA (homeowners association) property.

The stretch of land borders all of the property owners' property lines living along the lake and provides our access to the lake. There is no sidewalk or public thoroughfare, just this 20 foot stretch of land from the lake skirt to the homeowners' property lines.

Recently we have had an influx of people from the neighborhood and their visitors walking along this stretch of land out behind our yard. We have asked them repeatedly to leave; they stated it's HOA property so they have a right to be back behind our homes.

The land across the lake is undeveloped and whenever they are over on that side fishing no one gives them any trouble; we simply take issue with them walking and fishing out behind our backyard.It's a safety issue as well as security issue and it provides access directly to our backyards along the lake.

We are petitioning the HOA to sell this strip of land to the homeowners along the lake so we can continue to enjoy safe and peaceful use of our back yards, and stop the massive influx of strange people from walking along the back of our homes.

Is there any legal reason that the HOA board should not accommodate our requests on this matter? The local police have stated that they will not police this issue, as it's an issue for the HOA. Your thoughts and ideas are greatly appreciated.

Editors Reply: We do not have enough facts to give you a definite answer, but we'll be glad to point out some ways to think about this admittedly frustrating and annoying situation.

It's not the first time we have heard of similar circumstances, by the way.

The first thing we don't know is whether these people using the HOA property are owners or guests of owners within your development. If they are, they are correct in saying they have every right to be there right now, even though we understand that it feels like a violation of your privacy and security.

But from what you say about their fishing on the opposite side of the lake, we sort of think they are not HOA members or guests of them. If this is the case, they do not have any right to be there unless they have explicit permission from the HOA board. In this case, you should insist that your HOA board take aggressive action against trespassers. In the American Midwest they can post a no trespassing sign and notice, and insist that trespassers be arrested.

Police reaction suggests that they think the HOA board has other means of prohibiting access, but that may or may not be the case.

In other words, HOA property is not the same as a public park. (We are aware of a very few condo associations that have been set up with wording that says the public is allowed to use certain facilities, so make sure that is not true in your situation. If you would find that your developer set up the lake and adjoining land for public use, you can ask your HOA board to figure out how to reverse that.)

Another piece of information that is important in determining how to look at this is whether there are other property owners in your development and HOA, besides the ten of you whose back yards are adjacent to the HOA property by the lake. We are assuming so, since you refer to an HOA board that apparently is comprised of people other than the ten owners.

Our only point in bringing this up is to say that if you have other owners, it will be important to educate them and also the HOA board about the extent of the problem. You probably want to start taking some photos and noting dates and times. (The photos also will be useful if your HOA board can pursue the trespassing angle we described above.)

Then you ask if there is any legal reason the HOA board would not grant your request to sell you the property. Unfortunately there might be a legal reason. Often these strips by lakes are set up to allow maintenance and to accommodate temporary rises in the lake level due to storms. Sometimes when the development is approved by your city or town, a condition of the approval is that the maintenance strip be common ground.

To look into this, you need to ask your city to give you a copy of the ordinance by which your development was approved. (They are required by law to do this, although state law also may allow them to charge you a copying fee.) There also might be what is called a plat, which is essentially a subdivision map that shows property set aside for streets, utilities, and other purposes. If your city is small and does not have a particularly sophisticated legal department, you may want to have a private attorney also research whether there is any state law requiring a maintenance strip.

Unless you find a specific legal requirement, we think you could tell your HOA board that you would grant them a maintenance easement over the 20 feet if they sell you the property. This should take care take care of their concerns that they might need to dredge the lake or perform some other type of maintenance in the future. The HOA board also might feel more comfortable with a sale if you tell them you are willing to have them specify that no structure of any type can be built in the 20 foot wide strip.

We certainly hope your HOA board will be open to working with you to solve this problem if the people walking there are from outside your development. If by chance we have guessed wrong and the people you are describing actually own property in the subdivision, then you need to work with the HOA board to find a way to relieve this situation. Sometimes wristbands or even resident or visitor ID badges are required for common ground use, although we hate to see it come to that.

Another possible solution if they will not sell you the land would be to ask them to landscape the 20 food strip in such a way as to really discourage walking. We doubt you would want to do that, since you probably walk to the edge of the lake yourselves, but it is another option.

These are some of the ways to think about the situation of strangers in what seems to you like your back yard by the lake.

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