A.R. from outside of Connecticut writes:
Dear Mister Condo,
We have a condominium that borders a bike trail. Neighboring homeowners and the general public cross through our condominium property to either 1) access the trail or 2) access a public roadway on the other side of our property. They probably walk a quarter mile along our property. One neighbor has already made a prescriptive easement claim on our property for continuous 20-year use of the property. I have asked the board to gate off the trail and they refuse. I think they are breaching their fiduciary duty for failing to take steps to prevent other people from making a claim on our property. Can I bring a legal action against them to force them to gate the property?
Mister Condo replies:
A.R., I can understand your concern for safety, security, and potential liability for the association for having non-residents routinely on the property. However, without knowing all of the details, it is very hard for me to offer you a sound opinion. Let me share with you some of my thoughts and a few possible solutions.
You need to look at the how the property was initially developed. It is quite possible that the local municipality required the developer to offer access to the bike trail (not unlikely) or public roadway on the other side of the property (unlikely). If the land development came with use restrictions, that will end your query. It is also possible that the local municipality placed no encumbrances on the property, in which case you are free to proceed with your fence request.
Since a neighboring homeowner has sought a prescriptive easement, I would think the Board would take action. Laws vary from state to state and decisions on prescriptive easement (or “adverse possession” as it is also known) should have alerted the Board to contact their own attorney to defend the claim in court. I can’t imagine any Board simply giving up its land without a fight.
Your initial question was whether you could bring suit against the Board for not taking action. Please keep in mind that I am not an attorney and I cannot offer a legal opinion here. However, I would strongly encourage you to speak with an attorney to determine your next steps to “motivate” this seemingly disinterested Board. The Board is charged with protecting to enforce the condo’s governance and maintain, protect, and enhance the common elements. It would appear that this is not happening. While a lawsuit will certainly get their attention, I think you have a bigger challenge here and that is competence. Board members are volunteer leaders from within the community. They are only human and can make mistakes. Your particular community has a very specific challenge that requires expertise to protect the association. I would strongly recommend that if your current Board isn’t getting the job done, it is time for some new leadership. The Board, not a disgruntled unit owner, should be leading the charge to protect the association’s property. From this letter you have written to me, I would think you might be just the type of person for the job. Happy trails and all the best, A.R.!