What should our HOA board do when an owner's fence or shed encroaches on common area?

By OurHOA · General information · Revised September 24, 2026

Board steps when an owner's fence, shed or garden crosses onto HOA common area: survey, remove or license, required notices, adverse possession and sample wording.

Part of the HOA board handbook: running the board.

The short answer

Treat it as a land problem first and a rule violation second. Confirm the line with a survey, decide at a board meeting whether the encroachment comes out or stays under a written, revocable license, then send the owner a notice that follows your state's enforcement steps and your own enforcement policy. Do not let it sit. Years of silence give the owner an argument that the land, or a right to use it, has become theirs, and every other owner on the greenbelt is watching what the board tolerates. Two limits apply throughout. The board manages common area on behalf of all owners, so it generally cannot give a strip of it away on its own. And a friendly 'it's fine' from one director is not a decision of the board. Rules vary by state and by your governing documents. This guide is education, not legal advice, and a disputed boundary is a good time to call the association's attorney.

Find encroachments before they find you

Most encroachments arrive quietly. An owner replaces an old fence and sets the new posts two feet further out. A vegetable bed creeps past the back lot line into the greenbelt. A shed, a playset, a dog run or a compost pile lands behind the fence where nobody looks. Irrigation lines and fill dirt show up in a drainage swale. Put a common-area walk on the calendar once a year, with the recorded plat in hand and the landscaper along, since the mowing crew usually knows every spot where it can no longer get through. For each item, record the lot, a description, photos with something for scale and the date. The record also keeps the board from enforcing against one owner while five similar fences go unnoticed, which is the selective enforcement defense you do not want to hand anyone.

Confirm the line before anyone gets a letter

A county parcel map or an aerial photo is not a survey, and neither is a board member pacing off the distance from a sidewalk. Hire a licensed land surveyor to locate and stake the common-area boundary along the affected lots. Order a boundary survey with corners set, not a cheaper location sketch, because the sketch usually carries a disclaimer that it does not establish the line. The association pays because it is the landowner asking the question. If the owner produces a different survey, stop and send both to the association's attorney, because two licensed surveyors disagreeing is a title question that a board vote cannot settle. The owner's side of this, including why an architectural approval does not move a boundary, is covered in our guide on whether an HOA can make you move a fence that is over the property line.

Why waiting costs the association

State law lets someone who openly occupies land long enough acquire title to it, and each state sets its own clock. In Texas, Civil Practice and Remedies Code section 16.026 bars a suit to recover land held in peaceable and adverse possession by someone who cultivates, uses or enjoys it for 10 years, and section 16.030 then gives the possessor full title. Florida section 95.18 requires 7 years of possession, and the claimant must have paid the taxes on the land within one year of taking possession and filed a return with the property appraiser. When a return comes in, section 95.18(4) requires the property appraiser to mail a copy to the owner of record and note the claim on the tax roll, so any such letter to the association goes to its attorney the day it arrives. Colorado section 38-41-101 sets 18 years, and since 2008 a claimant seeking fee title must prove the claim by clear and convincing evidence and show a reasonable, good faith belief that they owned the land. California Code of Civil Procedure section 325 requires 5 years and payment of the taxes on the land. Most of these claims against an association would be hard to win. Use under written permission is generally not hostile, though, which is one more reason to put any decision to let an encroachment stay in a signed license.

Decide: remove it or license it

Put the item on a board agenda with the survey, photos and the landscaper's view. Order removal when the encroachment blocks maintenance access, sits in a drainage path or over a utility line, creates a hazard, or would set a precedent the board cannot live with. A license can make sense for something small and easy to remove later, like a garden bed or a fence a foot over the line that the owner agrees to maintain. The board's authority matters here. In Colorado communities created on or after July 1, 1992, section 38-33.3-302(1)(i) lets the association grant easements, leases and licenses over common elements. Selling or deeding the strip is different. In those communities, section 38-33.3-312 requires agreement from owners holding at least 67 percent of the votes, including 67 percent of the votes held by owners other than the declarant, or any larger share the declaration sets, and section 38-33.3-312(5) makes a conveyance that skips those steps void. Texas and Florida boards should read the declaration for any owner-vote requirement before conveying common area. A motion can read: 'Moved that the board require the owner of Lot 42 to remove the fence and shed located on common area as shown on the survey dated [date], following the association's enforcement policy.'

The notice and the owner's chance to fix it

Send the notice the law and your documents require, not a casual email. In Texas, Property Code section 209.006 requires written notice by certified mail before the association sues an owner over a violation, charges an owner for property damage or levies a fine. Suits to collect assessments or foreclose are the exception. The notice must describe the violation, give a cure period and tell the owner they may request a hearing. Under section 209.007 the board holds that hearing within 30 days of receiving the request. In Florida, section 720.311(2)(a) requires presuit mediation before going to court over disputes about the use of or changes to a parcel or the common areas. Colorado associations follow the covenant enforcement policy, with notice and hearing procedures, that section 38-33.3-209.5 requires them to adopt. Sample paragraph: 'A survey dated [date] shows that the fence and shed at the rear of your lot extend about 6 feet onto common area owned by the association. The board asks that you remove them from the common area by [date, at least 30 days out]. If you believe the survey is wrong or want to discuss a written license for part of the area, please contact the board by [date]. You may request a hearing before the board.'

What a license agreement should say

If the board lets something stay, put it in writing and have the owner sign before the board does. The agreement should describe the licensed area with a survey exhibit, say that the land remains common area owned by the association, and state that the license is permission only and creates no ownership, easement or other right. It should be revocable by the board on written notice, such as 60 days, and end automatically when the lot is sold unless the board signs a new one with the buyer. The owner maintains the licensed area and anything on it, carries liability insurance that covers it, indemnifies the association, and removes everything at the owner's cost when the license ends. The association and its contractors keep access for maintenance and utilities. A clause to adapt: 'Owner acknowledges that the Licensed Area is common area owned by the Association, that Owner uses it only with the Association's permission, and that this license creates no ownership, easement or other interest in the Licensed Area.' Record the board's approval in the minutes and keep the signed agreement with the lot file.

A sample timeline

Day 0: the walk-through or a complaint turns up the encroachment, and the manager or a director photographs it. By day 14: the survey is ordered. Day 30: the board reviews the survey at a meeting and votes to require removal or offer a license. Day 35: the notice goes out by certified mail with a cure date at least 30 days away. A hearing follows if the owner asks for one, within 30 days in Texas. Day 75: someone checks the site. If the owner has not complied, the board votes to refer the matter to the attorney, who handles mediation in Florida or suit where the documents allow it. Throughout, keep a single file with the survey, photos, notices, mail receipts and minutes.

Mistakes boards make

Treating an architectural approval of a fence as if it settled where the line is. Letting a director give verbal permission over the back fence. Ignoring an encroachment for a decade and then demanding removal the week after a dispute over something else, which looks like retaliation. Pulling out an owner's fence without notice, which starts a second fight over property damage. Enforcing against one lot while the survey shows the same problem next door. And quietly selling a strip to the owner for a few thousand dollars without the owner vote the statute or declaration requires. Remember the owner's side too: if the fence in question separates the lot from common area and needs repair, our guide on who pays for a boundary fence between your lot and common area covers who carries that cost.

Sources

These guides are general education for HOA boards and residents, not legal, tax, or financial advice. Rules vary by state and by your community's governing documents - check with a professional for your situation.

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