Encroachment of the Common Area
What's Mine is Mine, and What's Yours is Mine, Too.
Certain board members of the association have exercised a great deal of privilege during their decades-long tenure. This sense of entitlement has become a serious issue within the community. I am baffled by the apathy of so many members in the face of the blatant wrongdoing of our corrupt board of directors. The goal of this article is to inform the community of the flagrant encroachment on our common area by the lot owned by David Chavez, Jr., Treasurer, and Francis Jankel. The encroachment, which encompasses hundreds of square feet, effectively combines a portion of the Treasurer's lot with the common area. To exacerbate the matter, the encroaching perimeter wall is concealed from view by a dense thicket of overgrown vegetation.
- The perimeter wall at the rear of 333 Avenida Mirador encroaches on the common area by approximately 212 square feet. David Chavez, Jr. and Francis Jankel are joint tenants of the lot and have been its sole owners since the association was formed. They are required to comply with the Association's rules, as must all members. See Declaration § 18 (binding any person having any interest in the land); Guidelines § 1 (binding upon all persons). See also images El Mirador Subdivision Common Area, 333 Avenida Mirador Rear Fence Line Encroaches the Common Area and 333 Avenida Mirador Encroachment of the Common Area (above and below)
- The perimeter wall at the rear of this lot encroaches on the common area and improperly subdivides the lot, each of which constitutes a violation of Association rules. See Declaration § 1.20 (lots shall not include common areas); Declaration § 11.14 (no division or subdivision of lot); Guidelines § 2.2.12 (c) (walls constructed on lot property lines); Declaration § 11.5 (lot obstructs enjoyment of common area); Declaration § 11.11 (lot interferes with enjoyment of common area). See also images Doña Ana County GIS - 333 Avenida Mirador, Subdivision of Lot and Encroachment - 333 Avenida Mirador
- The Association is aware of the encroachment on the common area and has been for several years. Notice was additionally provided to the Association's management company DANA Properties attorney Robert Skipworth. No action has been taken to resolve the issue. See Notice to Association - Encroachment of Common Area. See also image Francis Jankel Complains at Board of Directors Meeting June 2018.
- The Association is legally obligated to enforce its rules and restore the common area, yet it fails to do either. See Declaration § 7.1 (duty of association and Declaration § 9.2 (damage to common area by lot owner).
- There are numerous other violations related to the obstructive overgrowth used to conceal the encroachment.
An Example Of Privilege And Entitlement
The El Mirador Homeowners Association, Inc. was established in 1988, stating that:
This Association is . . . operated exclusively and primarily for the promotion of social welfare and for the purpose of bringing about civic betterments and social improvements to the community as a whole to promote the health, and welfare of the community which benefits conferred shall produce a positive social result.In reality, the Association has been operated in a way that has primarily benefited a small group of people, some of whom have controlled the organization since its inception. This article, and those to follow, are intended to document and raise awareness of these issues.
A Line in the Sand
The common area is a 4+ acre section of land in the center of the subdivision, consisting of 94 residential lots, 51 of which directly border the common area along their rear boundaries. 50 of these lots have houses with perimeter walls, while one adjoining lot does not have a rear perimeter wall. These areas are sometimes referred to as the upper and lower common areas. Each segment has unique features, such as the North and South gazebos, putting greens, walking paths, and natural desert xeriscape areas.
One unique aspect of this arrangement is the rear of 333 Avenida Mirador, which borders the lower common area near the North Gazebo. The rear perimeter wall is built outside of the lot's boundary, encroaching into the common area along its entire length, approximately 60 feet. The irregular design of the rock wall divides the lot in a way that combines a portion of it with the common area. The area of encroachment is approximately 212 square feet, as calculated using photogrammetry techniques.
Multiple Violations for 333 Avenida Mirador
In addition to encroaching on the common area, the design and construction of the rear perimeter wall violate the declaration and design guidelines in several ways.
VIOLATION 1 - Declaration § 1.20 contains specific wording that applies to this situation: (emphasis added)
1.20 "Lot" means a subdivided lot which is part of the Property. A "Lot" shall not include any Common Areas. A "lot" includes the residential dwelling unit, garages, structures and other improvements constructed thereon.
VIOLATION 2 - The layout of the back yard and rear perimeter wall is in violation of Declaration § 11.14: (emphasis added)
11.14 No Further Subdivision; Compounds. No Lot shall be replatted, divided or subdivided. A Person may own more than one Lot, but may not combine contiguous Lots into a single homesite without the prior approval of the Design Review Committee. The Owners of contiguous Lots may not construct common recreational facilities on such Lots.
VIOLATION 3 - The design and construction of the rear perimeter wall is inconsistent with the Design Review Guidelines § 2.2.12 (c): (emphasis added)
(c) Party walls may be constructed on the lot property lines such that rear yards and side yards are enclosed, subject to other limitations contained herein and in the zoning ordinance. The party walls shall be no more than four and on [sic] half (4 ½) feet in height, or as approved by the Architectural Review Committee so as not to restrict views.
VIOLATION 4 - The area along the rear perimeter wall is inconsistent with Declaration § 11.5: (emphasis added)
11.5 Nuisances. No Owner shall permit or suffer anything to be done or kept about or within his Lot, or on or about the Property, which will obstruct or interfere with the rights of other Owners, Occupants or Persons authorized to use and enjoy the Common Areas, or annoy them by unreasonable noises or otherwise, nor will he commit or permit any nuisance or permit or suffer any illegal act to be committed therein. Each Owner or Member shall comply with Association Rules, the requirements of all health authorities and other governmental authorities having jurisdiction over the Property
VIOLATION 5 - The area along the rear perimeter wall is inconsistent with Declaration § 11.11: (emphasis added)
11.11 Safe Condition. Without limiting any other provision in this Section, each Owner shall maintain and keep his Lot at all times in a safe, sound and sanitary condition and repair and shall correct any conditions or refrain from any activity which might interfere with the reasonable enjoyment by other Owners of their respective Lots or the Common Areas.
A Bone of Contention
In 2018, while working on the irrigation system in the common area, Henry Trost cleared the rear fence line of the Chavez and Jankel property, which had been obscured from view for decades by heavy brush and trees. I understand that Trost was motivated by comparisons made by various members between his poor performance in maintaining the common area and that of Jankel, who had previously held the contract..
Having cleared the encroached area, Trost made several allegations to various members that Chavez had granted himself an easement into the common area. The idiom "no honor among thieves" seems particularly relevant in this context.
Trost's desire to expose Chavez and Jankel's wrongdoing is remarkable in its hypocrisy, given that all three are prolific and serial violators of Association rules and guidelines. Moreover, Trost and Jankel have both served on the Design Review Committee for years. To label them hypocrites would be a gross understatement.
Jankel was incensed by Trost's actions, and sanctimoniously complained during an Association meeting:
Mr. F. Charles Jankel commented that he was very upset with the deforestation of the Common Area behind his residence, leaving his backyard totally exposed.
A Lack of Accountability
The ill-will Trost held towards Jankel ultimately resolved in Chavez and Jankel's favor. They immediately began to restore the overgrown vegetation along their rear fence line, which is now once again almost completely obscured from the view of common area visitors. Their impunity in violating the association's rules is absolute.
No Level Playing Field
It is not surprising that Chavez and Jankel feel entitled to a portion of the common area, or that the Board ignores their blatant violations. There is no level playing field within the subdivision; the rules are not enforced fairly or consistently. Enforcement outcomes are often influenced by Board members.
Chavez's entitlement is evident in his harassment of a specific homeowner. The photos above and below show Chavez and the association president inspecting the homeowner's rear fence line, which is compliant with all regulations and more aesthetically pleasing than Chavez's own.
These are not acts of good faith by well-meaning people.
A Broken System: Association Failure to Fairly Enforce
Despite the Association's specific duty under Declaration §§ 7.1 and 9.2, the Board, management company, and attorney all choose to ignore these flagrant violations of the rules: (emphasis added)
7.1. Duty of Association. In the event of partial or total destruction of the Common Areas, or any improvements thereon, it shall be the duty of the Association to restore and repair the same as promptly as practical pursuant to this Section 7. The proceeds of any casualty insurance maintained pursuant to this Declaration shall be used for such purpose, subject to the prior rights of Mortgagees whose interest may be protected by said policies.
9.2 Maintenance of Common Areas. Except as otherwise provided herein, maintenance, repairs and replacements of the Common Areas shall be furnished by the Association as part of the Common Expenses, subject to the Bylaws and Association Rules. The Association shall maintain all landscape areas in accordance with the maintenance program provided by the Declaration to maintain all common area landscaping in a :first class condition with plantings including all lawn and greens areas in a healthy, vigorously growing condition. All areas shall be kept reasonably weed-free, and diseased or otherwise unhealthy plants shall be promptly removed and replaced.
Professional services of a university horti-culturalist, a landscape architect, or both shall be retained by the Association. Such person(s) shall make a written report at least twice a year giving advice about the condition of the common area landscaping. Such report shall, as a minimum report on, make recommendations for irrigation, pest and disease control, fertilization and removal or additions of plantings. Such person(s) shall make recommendations for adjustments in the maintenance program. If, due to the act or neglect of an Owner of the invitee, guest or other authorized visitor of an Owner, or an Occupant of such Owner's Lot, damage shall be caused to the Common Areas or to a Lot or Lots owned by others, or maintenance, repairs or replacement shall be required which would otherwise be a Common Expense, then such Owner shall pay for the damage and for such maintenance, repairs and replacements as may be determined necessary or appropriate by the Association, to the extent not covered by the Association's insurance. Such obligation shall be a Special Assessment secured by the lien provide for in Section 5.
The Power of Privilege: How Certain People Get Away with Violating the Rules
The Association's Board of Directors, DANA Properties Robert Skipworth are aware of the common area encroachment by Chavez and Jankel's lot. The violations listed on this page do not include the additional issues regarding the obstructive overgrowth. Despite the Association's specific duty under Declaration § 7.1, the Board, management company, and attorney all choose to ignore the flagrant violation of the rule:
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