Encroaching Decks
ALL LOT OWNERS HAVE THE RIGHT TO USE STRUCTURES ENCROACHING INTO THE PRIVATE PARK
The following appears relevant to the question of whether or not decks or other structures encroaching in the park are private (i.e. restricted to the use of) to the front lot owner or, conversely- as a matter of right, available to all association members?
1. The Circuit Court OPINION AND ORDER reads (page 3): This Court finds that ….The Huron Dunes Plat grants an irrevocable easement in Private Park lands to all lot owners in the subdivision.
2. The decision and opinion of the Court of Appeals reads (page 1): “The following facts are largely undisputed. … All lot owners in the subdivision maintain an easement over the parks and streets within the subdivision, which are owned by the defendant.”
3. The following testimony at trial. (See pages 27-30 of the transcript of the May 28, 2014 Circuit Court bench trial- William Boyle v The Huron Dunes Association. Note: Q is the question asked by the plaintiff’s attorney; A is the answer from the board member representing the Association at trial.):
Q And do you know whether or not that deck encroaches into the park?
A Yes I do.
Q Um do you have any - - is any member in the Association able to use your deck where it encroaches into the park?
A I would invite anyone from the association to come use my deck.
Q Okay. So, in other words, is that - - do you have to invite them or do you think they have the right to use it right now whether or not they’re invited?
A I believe it’s a common courtesy that they would first ask.
Q I’m talking about rights. Do they have the right to use it?
A Yes. They have the right.
Q Okay. And how long has that been your position?
A As long as I’ve been an Association member.
Q How long has that been?
A Forty-nine years.
Q So you have never changed that position at any time?
A No.
Q And so if this afternoon or tomorrow morning William Boyle is reading his newspaper on your deck, you believe he has every right to do that?
MR. WOLTER (attorney for the Association): Objection your Honor. This is calling for a legal conclusion on the part of the witness.
THE COURT: Mr. Hearsch?
MR. HEARSCH: Your Honor, the issue is - - the issue is whether or not encroachments in the park are being considered as private, meaning restricted to the owner of the lot or as a matter of right of all of the Association members. This gentleman has indicated that he has a deck. He believes it encroaches. He has said that there is - - the board has not - - never taken a position as to whether or not an allowed structure would be - - the use of an allowed structure would be limited to the owner or the person who built that. And I just wanna see if that’s his position with respect to his personal deck.
THE COURT: The witness is a board member. The information goes to his state of mind as to this matter. The objection is overruled. Go ahead.
BY MR. HEARSCH:
Q Can you - - did you recall the question?
A No.
Q Okay. Do you believe that right now Mr. Boyle or any other Association member has the right to use the portion of your deck that encroaches into the park without your permission?
A Yes.
Q And that means that you would not seek to remove them?
A Right.
Q Okay. Have you ever had the lot or boundary between your lot and the park surveyed or marked in any manner?
A Yes. I have.
Q When did you have that done?
A Back in 1960’s.
Q Was that before or after your deck was built?
A Before.
Q And how far does your deck encroach into the park land?
A Probably 12 of its - - well 11 of its 12 feet.
Q Okay. And as you’ve indicated previously, there’s been no written permission given by the Association to build any deck, including yours?
A There is no written documentation I could find. You’re right.
MR HEARSCH: Thank you. That’s all I have.
CONCLUSION- ALL LOT OWNERS HAVE THE RIGHT TO USE ANY DECK ENCROACHING INTO THE PRIVATE PARK.