9.1 Property Surveys, Legal Descriptions, Easements & Rights-of-Way

9.1 Property Surveys, Legal Descriptions, Easements & Rights-of-Way

[!NOTE] Core NCARB Programming & Analysis Competency: Architectural site evaluation requires establishing the legal, physical, and contractual boundaries of a parcel before locating building envelopes, vehicular access points, or utility connections. Candidates sitting for the ARE 5.0 PA division must accurately interpret civil land surveys, decode property legal descriptions, analyze affirmative and negative easements, evaluate right-of-way dedications, identify physical encroachments, and resolve conflicts between municipal zoning codes and private restrictive covenants.

Every architectural project begins with the legal definition of land. Designing a building without an exhaustive examination of boundary surveys, recorded deeds, easements, and property encumbrances invites catastrophic legal liability, cost overruns, and severe schedule delays. Siting a foundation footing even a few inches across a property line or into a municipal utility easement can result in mandatory structural demolition, court injunctions, and loss of title insurance coverage. Architects conducting pre-design programming must master the documentation that defines property rights and limits land development.

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Survey Typologies: Boundary, Topographic & ALTA/NSPS Land Title Surveys

Architects rely on three primary classifications of land surveys during pre-design and site analysis, each executed by a licensed Professional Land Surveyor (PLS) to fulfill distinct legal and technical functions.

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|                           Land Survey Classification                           |
+--------------------------------------------------------------------------------+
| 1. Boundary Survey        | Legal parcel perimeter, property corners, pins,    |
|                           | recorded easements, visible encroachments.         |
| 2. Topographic Survey     | Spot elevations, contour lines (1' or 2' interval),|
|                           | trees (>X" caliper), visible utility surface structures. |
| 3. ALTA/NSPS Land Title   | Rigorous national standard required by lenders and |
|    Survey                 | title insurers; integrates boundary, encumbrances, |
|                           | improvements, and optional Table A technical items.|
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1. Boundary Surveys

A boundary survey establishes the true legal perimeter of a parcel based on recorded deed descriptions, historical survey records, and field evidence. The surveyor locates or resets physical property corner monuments (such as iron rebar pins, concrete monuments, brass discs, or pipe stakes) and drafts a certified plat showing:

• Bearings (compass directions) and distances for every boundary line.
• Locations of found or set physical monuments.
• Recorded easements of record and public rights-of-way.
• Apparent visible encroachments (such as neighbor fences, sheds, driveways, or eaves extending across property lines).
• Total calculated parcel area (in square feet and acres).

2. Topographic Surveys

A topographic survey captures the physical three-dimensional shape, relief, and natural/man-made features of the earth's surface. It does not establish legal title, but it is indispensable for architectural grading, drainage design, ADA accessibility routing, and building cut-and-fill balancing. Key elements include:

• Contour lines at specified vertical intervals (typically 1-foot or 2-foot intervals for architectural site design; 5-foot or 10-foot intervals for regional master planning).
• Spot elevations at critical transitions: building thresholds, curbs, gutters, crowns of pavement, top and bottom of retaining walls, and swales.
• Significant individual trees (typically noting trunk diameter at breast height [DBH] for trees $\ge 4$ to 6 inches caliper, species, and canopy driplines).
• Surface utility appurtenances: manhole rim elevations, catch basin grates, water meter boxes, hydrants, electrical pull boxes, and utility poles.

3. ALTA/NSPS Land Title Surveys

An ALTA/NSPS Land Title Survey represents the most exhaustive and legally rigorous surveying instrument in American real estate practice. Jointly developed by the American Land Title Association (ALTA) and the National Society of Professional Surveyors (NSPS) (most recently updated in the 2021 standards), it was created specifically to satisfy the strict underwriting demands of commercial institutional lenders and title insurance corporations.

[!IMPORTANT] The Title Insurance Exception Rule: A standard title insurance commitment contains blanket "standard exceptions" that exclude coverage for boundary discrepancies, overlaps, unrecorded easements, and encroachments that would be disclosed by an accurate land survey. Commercial lenders will not finance multi-million dollar architectural developments with standard survey exceptions in place. Commissioning an ALTA/NSPS survey is legally required to remove these survey exceptions and secure an extended-coverage title policy.

Mandatory ALTA/NSPS Minimum Standard Detail Requirements

The surveyor must perform exhaustive field measurements and historical research, documenting boundary lines, recorded easements, rights-of-way, access points, water boundaries, building footprints, and physical evidence of earth moving or unrecorded access across the parcel.

Optional Table A Items

ALTA/NSPS surveys utilize a standardized menu of optional additions known as Table A. The client and architect select specific Table A items depending on project scope:

• Item 1: Monuments placed at all major corners.
• Item 2: Address of the surveyed property.
• Item 3: Flood zone classification (reproduced from FEMA FIRM panels, including graphic depiction of 100-year and 500-year flood lines).
• Item 4: Gross land area computation.
• Item 5: Topographic contours and vertical elevation datums.
• Item 6: Zoning classification, setbacks, building height restrictions, and parking stall counts (Item 6a: zoning classification; Item 6b: setback requirements provided by the insurer/client).
• Item 7: Exterior dimensions of all buildings at ground level, square footage, and building height.
• Item 8: Substantial features observed in the process of conducting the fieldwork (e.g., parking lots, billboards, swimming pools, landscaped plazas).
• Item 11: Observed evidence of underground utilities (e.g., 811 utility markings, utility company records, visible manholes, valves, and risers).
• Item 16: Recent earth moving work, building construction, or building additions.
• Item 19: Location of certified wetland delineation flags.

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Legal Property Descriptions: Metes & Bounds, PLSS, and Lot & Block

Every parcel of real estate in the United States must possess a unique, unambiguous legal description in its recorded deed to be legally conveyed, encumbered, or developed. Three primary legal description frameworks are utilized:

METES AND BOUNDS                PUBLIC LAND SURVEY SYSTEM (PLSS)          LOT AND BLOCK
   N 45°15'30" E                       Township 3 North, Range 2 West         Lot 14, Block 3
      142.50'                                                               Oakridge Heights
 ┌───────────────┐                       Section 14 (640 Acres)              Plat Book 24, Page 112
 │               │                      ┌───────────┬───────────┐           ┌───────┬───────┐
 │   PARCEL A    │                      │  NW 1/4   │  NE 1/4   │           │ Lot 13│ Lot 14│
 │               │                      │ (160 Ac)  │ (160 Ac)  │           │       │ (THIS)│
 └───────────────┘                      ├─────┬─────┼───────────┤           ├───────┼───────┤
POB: Iron pin at monument              │N 1/2│S 1/2│  SE 1/4   │           │ Lot 12│ Lot 11│
                                        └─────┴─────┴───────────┘           └───────┴───────┘

1. Metes and Bounds System

The Metes and Bounds system is the oldest land description framework in North America, predominantly used in the original 13 Eastern colonies, Texas, and parts of the South.

• "Metes" refers to measurements of distance (feet, rods, chains).
• "Bounds" refers to directional boundary compass bearings and monuments.

Key Components of a Metes and Bounds Description:

1. Point of Beginning (POB): The description must commence at a precisely located, verifiable physical benchmark or property corner known as the Point of Beginning. The surveyor ties the POB to a known regional monument or street intersection.
2. Quadrant Bearings: Directions are expressed as quadrant bearings measuring an angular deviation east or west from True North or True South, expressed in degrees ($^\circ$), minutes ($'$), and seconds ($''$). Bearings never exceed $90^\circ$.
   • Example: $\text{N } 45^\circ 30' 15''\text{ E}$ indicates an angle of 45 degrees, 30 minutes, 15 seconds eastward from due North.
   • Each degree contains 60 minutes ($1^\circ = 60'$), and each minute contains 60 seconds ($1' = 60''$).
3. Calls and Distances: A complete legal line segment is termed a "call," stating bearing and linear distance (e.g., "Thence North 23 degrees 14 minutes 40 seconds East, a distance of 312.45 feet to a set iron pin").
4. Monuments: Natural monuments (rivers, rock outcroppings, trees) or artificial monuments (iron rebar, granite posts, brass pins in concrete). Under legal hierarchy of evidence, natural monuments take legal precedence over artificial monuments, and monuments take precedence over recorded bearings and distances if discrepancies arise.
5. Mathematical Closure: The series of calls must traverse around the entire perimeter in a closed geometric loop, ending with a final call that returns directly to the Point of Beginning. If the boundary does not close mathematically (known as "error of closure"), the title description is defective and unmarketable.

2. Public Land Survey System (PLSS / Rectangular Survey System)

Established by the Land Ordinance of 1785 under Thomas Jefferson, the Public Land Survey System (PLSS) governs real estate legal descriptions across 30 public domain states in the Midwest, South, West, and Alaska (excluding the original 13 colonies, Hawaii, and Texas).

The PLSS Grid Architecture:

• Initial Point: Surveyors established an astronomical origin point where a north-south Principal Meridian intersects an east-west Base Line.
• Townships and Ranges:
  • Lines running north-south parallel to the Principal Meridian at 6-mile intervals are called Range Lines.
  • Lines running east-west parallel to the Base Line at 6-mile intervals are called Township Lines.
  • The resulting 6-mile by 6-mile grid squares are Townships, each encompassing 36 square miles (approximately 23,040 acres).
  • Identified by township and range coordinates (e.g., Township 4 North, Range 3 West: $\text{T4N, R3W}$).
• Sections:
  • Each 36-square-mile township is partitioned into 36 Sections.
  • Each section is 1 square mile, measuring 5,280 feet by 5,280 feet and containing exactly 640 acres.
  • Sections are numbered 1 through 36 in a boustrophedon pattern (back and forth like an ox plowing a field), starting with Section 1 in the northeast corner of the township, running west to Section 6, dropping south to Section 7, running east to Section 12, and terminating at Section 36 in the southeast corner.

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|                 Standard 36-Section PLSS Township Grid Map                     |
+--------------------------------------------------------------------------------+
|   6    |   5    |   4    |   3    |   2    |   1 (NE Corner)                   |
|   7    |   8    |   9    |  10    |  11    |  12                               |
|  18    |  17    |  16    |  15    |  14    |  13                               |
|  19    |  20    |  21    |  22    |  23    |  24                               |
|  30    |  29    |  28    |  27    |  26    |  25                               |
|  31    |  32    |  33    |  34    |  35    |  36 (SE Corner)                   |
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Section Subdivisions: Aliquot Parts Calculations

Sections are systematically subdivided into fractional quarters known as aliquot parts:

• Quarter Section (1/4 section): Measures $1/2\text{ mile} \times 1/2\text{ mile} = 2,640\text{ ft} \times 2,640\text{ ft}$, containing 160 acres ($640 / 4$).
• Half-Quarter Section (1/8 section): Contains 80 acres ($640 / 8$).
• Quarter-Quarter Section (1/16 section): Measures $1/4\text{ mile} \times 1/4\text{ mile} = 1,320\text{ ft} \times 1,320\text{ ft}$, containing 40 acres ($640 / 16$). Known historically as the "forty-acre parcel."

[!TIP] Solving Aliquot Part Acreage on the ARE: To calculate the acreage of a PLSS aliquot legal description, read the fractions backward or multiply the fractional denominators successively from 640 acres.

Example: "The North 1/2 of the Southwest 1/4 of the Southeast 1/4 of Section 22": $\text{Acreage} = 640 \times \frac{1}{4} \times \frac{1}{4} \times \frac{1}{2} = 640 \times \frac{1}{32} = 20\text{ acres}$

Example with multiple parcels combined with 'and': "The East 1/2 of the Northwest 1/4 AND the Southwest 1/4 of Section 10":

• Parcel 1: $640 \times (1/4) \times (1/2) = 80\text{ acres}$
• Parcel 2: $640 \times (1/4) = 160\text{ acres}$
• Total Combined Acreage = $80 + 160 = 240\text{ acres}$

3. Lot and Block System (Recorded Plat System)

The Lot and Block system is the standard legal description methodology for modern urban, suburban, and commercial subdivisions.

• A large master parcel (originally described by metes and bounds or PLSS) is surveyed and subdivided by a developer into streets, public utility corridors, and individual buildable lots.
• A detailed subdivision plat map is drafted by a professional land surveyor, reviewed and approved by the municipal planning commission, and permanently recorded in the county land records office (Recorder of Deeds).
• The recorded plat is assigned a specific Plat Book and Page volume.
• A lot and block legal description identifies the specific lot, block number, subdivision name, and recording reference: "Lot 14, Block 3 of Meadowbrook Estates Subdivision, Phase II, recorded in Plat Book 42, Page 118, of the Public Records of Orange County, Florida."

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Easements & Property Encumbrances

An easement is a non-possessory legal interest in real property that grants the holder the right to use another person's land for a specific, limited purpose, or that prevents the landowner from using their land in a specific manner. An easement encumbers the legal title of the property.

                                  ┌───────────────────────────────┐
                                  │          EASEMENTS            │
                                  └──────────────┬────────────────┘
                                                 │
         ┌───────────────────────────────────────┴───────────────────────────────────────┐
         ▼                                                                               ▼
┌────────────────────────────────┐                                             ┌────────────────────────────────┐
│      EASEMENT APPURTENANT      │                                             │       EASEMENT IN GROSS        │
│ - Involves two parcels         │                                             │ - Benefits entity/individual   │
│ - Dominant Tenement (benefits) │                                             │ - No dominant tenement         │
│ - Servient Tenement (burdens)  │                                             │ - Commercial: Assignable       │
│ - RUNS WITH THE LAND           │                                             │ - Servient parcel encumbered   │
└────────────────────────────────┘                                             └────────────────────────────────┘

Affirmative vs. Negative Easements

• Affirmative Easement: Grants the easement holder the legal right to physically enter and perform a specific activity upon the servient land (e.g., drive an automobile across an access lane, install and maintain an underground sanitary sewer pipe, or walk along a pedestrian path).
• Negative Easement: Prohibits the owner of the servient land from performing an otherwise lawful act on their own property. Common architectural examples include:
  • Solar Easement: Forbids the servient landowner from constructing buildings or growing vegetation that casts shadows across the dominant parcel's solar photovoltaic panels or passive solar apertures.
  • View / Scenic Easement: Restricts the maximum height, massing, or placement of structures on the servient parcel to preserve scenic sightlines (e.g., ocean, mountain, or park vistas) for the dominant parcel.
  • Conservation Easement: Restricts subdivision, commercial development, or mass grading to preserve natural wetlands, forest ecosystems, or agricultural heritage.

Easement Appurtenant vs. Easement in Gross

Specialized Easement Typologies in Architectural Site Planning

1. Utility Easements: Granted to public municipalities or private utility corporations to install, inspect, repair, and maintain overhead power lines, buried gas mains, water mains, sanitary sewer pipes, and telecommunications conduits.
   • Architectural Constraint: Permanent structures, load-bearing footings, retaining walls, swimming pools, and deep-rooting canopy trees are strictly prohibited within utility easements. If an architect sites a building over an easement, the utility has the legal authority to force removal at the owner's expense.
2. Access & Ingress/Egress Easements: Provide legal vehicular and pedestrian passage across one parcel to access another, commonly utilized for "flag lots" (an interior parcel connected to a public street via a long, narrow driveway strip) or shared commercial parking access.
3. Drainage & Stormwater Easements: Reserve corridors across private parcels for overland stormwater flow, engineered drainage swales, detention basin overflow channels, or subsurface culverts. No filling, regrading, or structural obstruction is permitted.
4. Conservation Easements: A legally binding voluntary agreement between a landowner and a qualified land trust or government agency that permanently restricts real estate development, commercial timber harvesting, or industrial farming to preserve ecological resources. Landowners frequently receive substantial federal income tax deductions under Internal Revenue Code (IRC) Section 170(h) in exchange for donating conservation easements.

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Encroachments, Adverse Possession & Prescriptive Easements

Encroachments

An encroachment occurs when a physical building element, structure, paving, or improvement illegally extends beyond the property line onto an adjacent owner's land or extends into a recorded easement corridor. Common encroachments include:

• Overhanging roof eaves, gutters, or balconies projecting across a boundary line.
• Masonry fences, retaining walls, or asphalt driveways constructed outside property pins.
• Structural footings projecting into an underground utility easement.
• Tree canopies or underground root systems invading neighboring airspace or foundations.

[!WARNING] Encroachment Impact on Project Feasibility: An encroachment creates a "cloud on title," rendering the property's title unmarketable. Institutional lenders will refuse to issue construction loans until encroachments are formally resolved. Resolution mechanisms include: (1) negotiating and recording a formal Boundary Line Agreement or Encroachment Easement with the neighbor, (2) purchasing the encroached land strip via a lot-line adjustment, or (3) physically demolishing or altering the encroaching improvement.

Adverse Possession vs. Prescriptive Easements

• Adverse Possession: A legal doctrine whereby a non-owner can acquire fee-simple legal title to another person's real property without paying compensation by occupying the land openly, notoriously, exclusively, hostilely (without the owner's consent), and continuously for a statutory time period (typically 7 to 21 years depending on state law). Some jurisdictions also require payment of property taxes during the statutory occupancy.
• Prescriptive Easement: Acquires an easement of use rather than full fee-simple title. If an individual or the public uses an access lane or driveway across a neighbor's property openly, continuously, and hostilely for the statutory period, they acquire a permanent, legally enforceable prescriptive easement that cannot be revoked by the servient landowner.

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Rights-of-Way (ROW) & Public Dedications

A Right-of-Way (ROW) is a legal right of passage over land, most commonly dedicated to a municipal, county, or state government for public transportation corridors, pedestrian sidewalks, storm drainage, and public utility distribution.

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|                 Anatomy of a Typical Public Right-of-Way (ROW)                 |
+--------------------------------------------------------------------------------+
|<─────────────────────────── Total ROW Width (60' to 100') ────────────────────>|
| Property Line                                                    Property Line |
|  │   Sidewalk   Planting / Verge    Roadway Pavement    Planting   Sidewalk  │ |
|  │    (5'-8')     (6'-10')         (Curb-to-Curb: 32'-48') (6'-10') (5'-8')  │ |
|  │  ┌─────────┐  ┌──────────────┐  ┌──────────────────┐  ┌───────┐  ┌──────┐ │ |
|  └──┴─────────┴──┴──────────────┴──┴──────────────────┴──┴───────┴──┴──────┴─┘ |
|  ▲                                                                           ▲ |
|  │                                                                           │ |
|  └─ Mandatory Zoning Building Setbacks Are Measured From THIS Property Line ─┘ |
+--------------------------------------------------------------------------------+

Critical Principles of Rights-of-Way:

1. ROW Width vs. Pavement Width: Candidates frequently confuse total right-of-way width with actual paved roadway width. A public street right-of-way typically measures 60, 80, or 100 feet wide, while the paved vehicular roadway may occupy only 32 to 48 feet. The remaining land within the ROW comprises curbs, gutters, planting verges (tree lawns), concrete pedestrian sidewalks, street lighting, fire hydrants, and subsurface utility mains.
2. Building Setback Measurement: Municipal zoning setbacks (front yard setbacks) are ALWAYS measured from the legal Right-of-Way line (the property boundary), NEVER from the physical curb or edge of pavement. Measuring setbacks from the street curb places the building footprint inside the required front setback or directly within the public right-of-way!
3. Public Dedications: A dedication is the legal transfer of private real estate to a government entity for public use. Dedications are common during the subdivision and site plan entitlement process:
   • Statutory Dedication: A developer records an approved subdivision plat map that formally designates street corridors, sidewalk easements, and parkland as dedicated public property.
   • Common-Law Dedication: Occurs when a property owner implicitly allows public use of land (offer) and the municipality maintains or accepts it through public maintenance (acceptance).

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Water Rights: Riparian vs. Littoral Systems

Real estate parcels that border natural bodies of water are encumbered or enhanced by specific water law doctrines that dictate an architect's site development potential.

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|                           Water Rights Classification                          |
+--------------------------------------------------------------------------------+
| RIPARIAN RIGHTS               | Applies to FLOWING waters (rivers, streams,    |
|                               | brooks, creeks).                               |
| LITTORAL RIGHTS               | Applies to NON-FLOWING navigable waters (lakes,|
|                               | seas, oceans, tidal estuaries).                |
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1. Riparian Rights (Flowing Water Bodies)

Riparian rights govern properties that physically abut flowing watercourses such as rivers, creeks, and streams. Two fundamentally distinct legal doctrines govern riparian rights across the United States:

• Riparian Doctrine of Reasonable Use (Eastern US): Governs states east of the Mississippi River where water is abundant. All landowners whose properties touch the watercourse share equal rights to make "reasonable use" of the water (for domestic consumption, irrigation, recreation) provided their withdrawal does not substantially damage or diminish the water quality or quantity for downstream riparian owners.
• Doctrine of Prior Appropriation (Western US): Governs arid and semi-arid Western states (e.g., Colorado, Arizona, California). Water rights are completely severed from land ownership. Rights are allocated under the principle of "first in time, first in right." The first party to divert water from a source and put it to "beneficial use" acquires a senior water right that takes legal precedence over all subsequent (junior) appropriators, even if the junior appropriator owns the land through which the river flows.

2. Littoral Rights (Non-Flowing Water Bodies)

Littoral rights govern properties bordering navigable, non-flowing bodies of water, including lakes, seas, bays, and oceans.

• Ownership Boundaries: Littoral landowners typically hold fee-simple title only to the ordinary high-water mark (OHWM) or mean high-tide line.
• The Public Trust Doctrine: The foreshore (the wet sand beach area between the low-tide line and the high-tide line) and all submerged land beneath navigable waters are owned by the state and held in trust for the public for navigation, fishing, and recreation. Private owners cannot construct seawalls, fences, or piers that block public access along the foreshore without state and US Army Corps of Engineers permits.

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Covenants, Conditions & Restrictions (CC&Rs) vs. Municipal Zoning

Real estate development is regulated by two parallel legal frameworks: public police powers (municipal zoning bylaws) and private contractual law (deeds and restrictive covenants).

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|              Public Zoning Ordinances vs. Private Deed Restrictions            |
+--------------------------------------------------------------------------------+
| PUBLIC ZONING (Municipal Code)  | Governed by statutory police power           |
|                                 | Enforced by city building/planning officials |
|                                 | Variances granted by Board of Adjustment     |
| ─────────────────────────────── | ──────────────────────────────────────────── |
| PRIVATE RESTRICTIONS (CC&Rs)    | Governed by civil contract and property law  |
|                                 | Enforced by HOA or affected property owners  |
|                                 | Variances granted only by private HOA board  |
+--------------------------------------------------------------------------------+

The Rule of the Stricter Standard

When municipal zoning ordinances and private CC&Rs address the same site development parameter (such as building setbacks, maximum building height, exterior cladding materials, or allowable uses) and their requirements conflict, THE MORE RESTRICTIVE STANDARD ALWAYS CONTROLS.

[!CAUTION] The Stricter Standard Applied:

• Scenario 1 (Setbacks): Municipal zoning requires a 20-foot front setback. A private CC&R mandates a 35-foot front setback. The architect must provide a 35-foot setback (the stricter private standard controls).
• Scenario 2 (Height): Municipal zoning allows a building height of 45 feet. Private CC&Rs limit height to 30 feet. The architect must limit building height to 30 feet.
• Scenario 3 (Use): Municipal zoning permits multi-family residential. Private CC&Rs restrict property use strictly to single-family detached residential. The property is legally limited to single-family residential.

Key Principle: A municipal building official enforces only the municipal zoning code and building code; the city will issue a building permit even if a design violates a private CC&R! However, the Homeowners Association (HOA) or any neighboring property owner within the subdivision can immediately file a civil lawsuit, secure an injunction, and force the architect and developer to tear down non-compliant construction.