Either way, if you're not into maps, imagine taking your neighbor's fence post and sliding it over just a bit so your yard gets bigger and then you pave over it. That's what they essentially did. To anyone wondering how this could dare to record it, it happens. It shouldn't, but it does. Especially when you've got a developer who brings in their own survey, a rushed planning meeting, and a county office that is overwhelmed. The recorder's office doesn't go out and physically verify lines. They file what is presented if it meets the paper requirements. It's on the surveyors and developers to be right. If they are wrong, the court gets to have a party later.
I asked the clerk if anyone had challenged a plat and she said no. No objections, no notices returned. That didn't shock me because I was literally out of the country and my mailing address was a P.O. box set up to forward. If they sent notices and they got forwarded in a pile of other junk mail from a subdivision I'd never heard of, I probably thought it was landscaping flyers and ignored them. So that's on me. But it's also not on me in the legal sense because again, you cannot erase a deed by sketching a new map.
The next stop was a real estate attorney. I didn't go in guns blazing. I walked in with my folder in my laminated plat like a nerd and said, "I need to know if I'm crazy." And he looked at everything. He looked at the recorded plat for the HOA. He looked at my deed. He pulled up the county GIS and squinted. He chewed on his glasses like attorneys do on TV when they are thinking. And then he said something that stuck. "You're not crazy. Your deed predates their plat. They built on your land."
He told me my options and there were quite a few paths. A quiet title action to confirm that I still own what I think I own and to resolve any disputes, trespass and ejectment to get them off my land, or an injunction to stop further construction and damages. He also asked me a question I wasn't ready for. "Do you want their houses? Do you want to sell the land underneath them? Do you want them removed? What outcome do you want?"
My first gut reaction was scorched earth. Anyway, the practical side of me asked if there was a way to fix it without tearing down someone's dream home. Except then he called the HOA's attorney to open a line of communication, and that dream home sympathy evaporated in about 2 minutes.
The HOA attorney was not the developer's attorney, by the way. That's important. HOAs and developers are often tied at the start, but once the developer hands off, the HOA is its own beast. In this case, the HOA had been set up by the developer and controlled by a board made up of developer people until a certain number of houses sold. They were still in that initial phase. So even though the voices were different, the arrogance was the same.
The first call was civil. We sent over the documents and a demand to stop building on the disputed parcels until it was sorted out. The response came back faster than I expected and it was a whole lot of no. They claimed that they had a recorded plat. They claimed my deed was vague and they claimed the county had approved the boundaries. They claimed I was confused and they claimed they had no notice of an adverse claim and that even if there was one, it was de minimis.
My attorney put the email on speaker metaphorically and gave me the look that says, "They think you're bluffing." And well, I was not bluffing. The attorney said we could rush to court for a temporary restraining order to stop further construction and he asked me if that was what I wanted. I asked how long would it take to get a hearing. He told me and I asked if a TRO would actually stop them or if they would just shift the framing by 3 ft and pretend compliance. He said sometimes developers pushed a line at act first and ask forgiveness later.
I asked what would make the most airtight case and he leaned back, sighed and said, "Honestly, let them finish. Let them go as far as they are going to go. Document everything. Make it so there's no way they can claim they didn't know or that it's not substantial. Then we ask the court for the remedy the law provides which is ejectment. That means removal. You will be the most hated person in HOA for a while but the law is pretty clear. If someone builds on your land without your permission and without good faith belief that it is theirs, that structure is a trespass. The court can order them to remove it."
I sat with that for a week. I walked the HOA neighborhood at different times when workers were not around. I did not trespass in buildings, but I stood on the public sidewalk and looked like a low-budget inspector. I watched families tour model homes on weekends with a sales agent chirping about community and amenities like they were selling membership to a club. I watched them pour driveways on what I knew in my bones was my dirt. I watched them plant a maple tree and laugh about the name. Every time I thought about pulling the rip cord and filing for an injunction immediately, I remembered the HOA attorney's response and then got angry again. I kept my head down. I took photos from public right of way. I saved screenshots of the builder's website where they helpfully listed which lot corresponds to which address, and I printed the MLS listings when they hit. I noted that three of the four finished houses already had pending offers. I took a picture of a moving truck one morning and wrote down the date.
The plan was simple. They were going to bury themselves in their own paperwork. They were going to sell houses built on land they didn't own with warranties and HOA disclosures and all the usual closing documents. And every piece of that was going to be evidence that they acted without even doing the most basic due diligence.
We filed the quiet title action and the trespass/ejectment complaint a little later than we could have, not because we didn't care, but because we wanted the construction to be substantial in the court's eyes. We also recorded a lis pendens, which is a notice to the world that there's a lawsuit affecting the property. That was key. The minute the lis pendens hit, the HOA sent a panicked email because their closings stopped dead. Title companies will not close when there is an active lawsuit clouding the title. They said that we were trying to extort them. We were not. We were just trying to stop people from buying a defective house on top of a giant legal problem. The HOA said we were costing families their homes.