In homeowner associations with common wall housing, a curious phenomena takes place: Certain owners feel compelled to stake claim to the common area adjacent to their units. This takes on many forms. Some commandeer adjacent grounds for personal plantings, even running irrigation systems through it. Some expand their patio or deck into it. Some build storage sheds in it or place hot tubs there. Some brazenly fence off "their" yard.

Another form of claim staking involves expanding personal living quarters into attic or crawlspaces when the architecture permits. Unit owners have been known to mole into crawlspaces to build wine cellars, extra bedrooms and storage bunkers. On occasion, residents grow "exotic plants" in the attic, out of sight of drug enforcement. Have you ever seen a violet glow coming from attic vents after dark? Aha!

Condominium ownership is usually defined in the governing documents as "from the decorated surface of the unit in." Admittedly, condo living is not for everyone. Folks that are used to digging in the dirt and redesigning their home are not going to be comfortable with these boundaries. They crave what Hitler called "leibensraum," more living room. While these folks don't use guns and tanks when they expand, they often feel they have the right to take over whatever common area space adjoins their unit. And sometimes, the Board agrees and approves of them doing it.

The problem is, neither an owner nor the Board has the authority to reallocate the common area unless 100% of the members agree to it by amending the governing documents. Another more practical consideration is that these modifications often impact the ability of the HOA to properly maintain the grounds and buildings. For example, fences impede work by landscape and repair contractors. Improperly installed decks are a common source of dryrot to the buildings. Add on rooms in the attic or crawlspace cause additional intra-unit noise and fire hazard potential.

It is very important for the Board to understand its role as Defender of the Common Area. The common area belongs to all members and no one owner has the right to stake claim to it. Preventing claim staking requires constant vigilance by the Board. Once one unit owner is allowed to stake claim, others will quickly follow suit thinking if it's okay for one, it's okay for all. Soon, there will be multiple violations and the Board will have a heck of a time trying to undo it all. Be watchful and preempt these moves early.

If the horse is already out of the barn and there are already multiple violations, it's time to determine the scope of the problem and prioritize the violations according to flagrancy. Curb appeal issues directly impact market values so violations of this kind you would want to deal with more aggressively. Violations like fencing, decks, storage sheds or added rooms are the next priority. More minor offenses like owner planting beds, lawn ornaments, furniture and whirlygigs are lower priority.

If there are multiple violations of a common sort, it's best to address them simultaneously to avoid the "What about so and so? They have one too" defense. The Board should have a cohesive strategy for responding to every violation. It's important that individual board members do not negotiate with violators or give them the impression it's no big deal because this will undermine Board authority. Besides, these violations are a big deal and appeals should be addressed only to the Board as a whole by holding an appeal meeting with all the players present. That way, when the defense is presented and the Board decision is made, everyone is informed.

Some owners may have a valid defense for their violation or have obtained written approval from a prior Board (curses!!!). In those cases, the current Board should try to negotiate a dismantling date, even if that date is when the owner sells the property. Whatever the outcome is, it should be formalized in a recordable document that is filed against the unit title so the future owner and the Board President are informed of the deal.

Claim staking is as natural as the sun rising. It is bound to happen sooner or later in some form or another. It's up to the Board to be aware and prepared to defend the common area from claim jumpers.

Published: November 19, 2003

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Richard Thompson owns Regenesis, a management consulting company that specializes in condominium and homeowner associations. He is a nationally recognized expert on HOA management issues. Regenesis publishes The Regenesis Report, a monthly newsletter for HOA boards, developers and managers. To subscribe, go to Regenesis.net. He can be contacted by email at .