Over time, when people use a walkway, sitting area, play area or other type of open space, that continued use may give rise to a claim by the public that the space should be maintained for the public benefit and can no longer remain private. To avoid losing any property rights, a property owner will place private property signage in the area.
You can imagine a situation where a homeowners association has a play set for use by the association owners. Over time, people from the neighborhood come and use the play set. Years go by and the play area becomes part of the community. Then, out of nowhere, the association wants to keep non-owners out of the play area, perhaps because of an insurance issue. It’s at this point that the non-owners claim a right to use the play set area.
To avoid this situation and any legal actions that must be defended in court, the association can post notices to indicate that the area is owned by the association. They may also post rules as to who may use the play area, at what hours and under what circumstances, and the notification that these rules will be enforced. By preserving their rights to control the area, the association maintains what it owns and keeps the property rights that it has.
Having said that, the association may not lose ownership of an area if they don’t place those signs, but they may lose some rights to control the area or restrict access to the area. We suspect the association talked to an attorney about some issue that may have occurred on the grounds of the association and that attorney recommended that they place the private property signs.
That signage doesn’t have to strictly say “private property.” The signage can also identify the association by name along with contact information or any other information to identify the area owned by the association.
It generally takes time for the public to obtain rights to use private property. It won’t happen overnight. If public use of the private property occurs over decades without interruption, then you might have an issue. Once the community starts believing that something is there for public use, a private owner should be concerned about whether it has lost some or all of its right to control the property.
Ilyce Glink is the author of “100 Questions Every First-Time Home Buyer Should Ask” (4th Edition). She is also the CEO of Best Money Moves, an app that employers provide to employees to measure and dial down financial stress. Samuel J. Tamkin is a Chicago-based real estate attorney. Contact them through her website, ThinkGlink.com.