A recent local issue has just surfaced that I am finding very interesting and will be following. In the South Jersey pines there is a massive age restricted development known as Leisure Town. It's a semi gated community with a HOA but the roads are public and they receive some municipal services like snow removal and garbage collection. All residents (hundreds) pay HOA fees for the maintenance of common space areas that include a lake and dam.
The lake, presumably, dates back the 1950's when the dam was built, it is non tidal/non navigable and lies solely on the private property of the HOA. In the decades that have passed since the lake was formed, a developer bought the land and, within the title lines, the entirety of the lake.
Across the lake, in a different municipality, residential properties. As far as the details have come out very recently, each of the waterfront properties backing up to the lake, opposite the development, all have deeds that have calls to the edge of the lake. Now here is where the plot thickens, some of these residents, over the years, have constructed docks extending into the water and most of these property owners use the lake to canoe, kayak, fish and generally enjoy the lake, while others access the lake via an upstream tributary that feeds it. Being a lifelong resident in the general area it has never come to anybody's intention that any of this caused any sort of problem.
Just a few weeks before Christmas, in comes the controversy. The people opposite the development who bought lakefront property were either told by a realtor or seller that they had a right to use the lake, as noted above some built docks out into the water and others launched boats from the waterline of accessed it in small boats from the upstream feeders. Suddenly, those with the docks receive certified return receipt letters from the HOA's attorney.
It turns out, the HOA's insurance company has very recently notified the HOA that all uses of the lake by non HOA members must stop. The Attorney's letter stated that if the docks were not removed by the owners, the HOA would remove them. Essentially, it was a cease and desist order stating all non HOA enjoyment of the waterbody must halt.
A few of the people who have received these letters have reached out to me, it seems that something brewed about four or five years ago and those waterfront owners across from the development were pressured into having their properties resurveyed, with a single Attorney charging each of them a $350 fee for filing a "corrective deed". In talking with those who have reached out to me, I asked them the reasoning behind the resurveys and what the corrections to their deeds were, none could tell me about the deeds but they all said that they felt pressure to have the resurvey done because their neighbors were and they didn't want to be the ones to not be good neighbors. I'm personally wondering if the correction had something to do with potentially removing any rights to the enjoyment of the lake itself.
I'm posting this because I have heard this from the people who have reached out to me and raised some red flags in my head. Not wanting to give any legal advise, I have advised those who spoke with me to find an experienced Attorney who is versed in both title issues and water law. What comes to mind, and not verbally spoken, is that the prerequisites for either prescriptive easements for those using the lake for the statutory period, or, recognition and acquiescence for those building the docks, uncontested by the HOA, could come into play.
I'll be waiting and watching to see how this plays out and would be interested in reading what others think. In my mind, some of the longtime owners that have pockets deep enough to fight back within the legal system could potentially prevail if they meet the statutory requirements for a claim. As of now, adverse possession would not be a valid claim, absent the hostility requirement. I'd like to hear your thoughts on this situation, written as I understand the case to be.
Wow, I would love to see the original deeds and the "corrective" deeds. Almost sounds like some underhanded coercion.
Very interesting. I'd be interested to see a plat of the lake and where it is in relation to any easements and property lines. Sounds to me like a realtor sold access to the lake when it wasn't theirs to sell to begin with. I know of Conservation Club lake in my town that abuts the backyards of a subdivision. As soon as one of those houses sells, a letter arrives in the mail warning you not to fish/swim/boat in their lake unless you want to buy a membership.
That apparently was never an option buy offering membership for a reasonable fee would make most of the issues go away. Very interesting solution that I had not even considered.
Me too, but I'm not going to invest my time in the deep dive because I have no skin in the game, I'll just sit back and follow what happens and see what those "corrective deeds" have to say in a platted subdivision.
Based on the apparent age of things in the area I would assume the ship has long sailed on being able to tell people to scram from the property/lake/whatever, but I don't think that really ever stops lawyers from trying.
That's what I'm thinking too.
As I continue to follow this situation, I realized that I should have provided a link to the original story that was published in the local rag sheet and there was a follow up posted in the same small town paper published yesterday.
The jist of the follow up was to go back and interview the affected landowners who have been put on notice to remove their docks and cease from using the lake for any purpose. It provided a glimpse into facts that had not previously been presented.
One of the people spoken to again said that he was an original lot owner in the subdivision that backs up to the lake and built his original dock 50 years ago and has been maintaining and using it since then. Others spoken to again claimed the same with periods of occupation and lake usage of at least 20 years. In speaking with the Mayor of the town abutting the lake, it was insinuated that the town is getting involved in the dispute, behind closed doors.
This is what I find interesting, with open and notorious usage of the lake for periods ranging from 20 years to 50 years, adverse possession is out of the picture because the occupation/usage has not been contested, or "hostile" until very recently. There seems to me to be a sound case for prescriptive easements though. Keep in mind that the subdivision/HOA was built/established in the 1970's, the lake predates the HOA/subdivision and usage/enjoyment of the lake has never been contested until very recently. What are your thoughts on my thoughts regarding prescriptive easement possibilities?
Hostile does not require the occupation to be contested. The hostile aspect is met when the occupation infringes on the right of the owner. The owner can remove the hostile aspect by giving permission. So these people with 50 year old docks have been occupying the lake in a hostile manner for that period of time unless it can be shown the true owner gave permission.
If the HOA or the previous owner had given permission, this would be a non-issue. Not saying anything about the occupation for 50 years does not indicate hostility, however, the notice to remove the docks does.
"Hostility" is indicated when the dock owner impinges on the rights of the lake owner. The lake owner never brings about hostility. Only the non-owner can be ( and is required for adverse possession) hostile. The only thing the lake owner can do is remove the hostility by giving permission and removing the possibility of an adverse possession claim. If permission was never given then the dock owner has met the condition of hostility over the past 50 years and an adverse possession case is still relevant.
What are your thoughts on my thoughts regarding prescriptive easement possibilities?
If the long-time users of the lake were my client I'd probably tell them to tell the HOA/lawyer to pound sand (pun intended I guess), and only if they were sued would I float the idea of a prescriptive easement.