The number of questions homeowners association (HOA) property management companies receive about how the HOA has the ability to enforce covenants, conditions, and restrictions (CC&Rs), and even perform any type of maintenance on elements that the association does not physically own is growing. Such as, how in a townhome HOA can the board of directors have repair work done to individual lot owner’s dwelling, crossing onto private property, owned by the lot owner, to achieve repairs. HOA property management companies will advise that repairs that are, in most instances, HOA responsibilities. That is just it, these repairs can be done because it is the HOA’s responsibility, and authority is granted through the CC&Rs of the HOA. The following provision is taken from the first page of a townhome HOA established in 1999.
WHEREAS, Declarant desires to ensure the attractiveness of the Homeowners Association’s Common Elements and the individually owned Lots, to prevent any future impairment thereof, to prevent and avoid nuisances, to preserve, to enhance, and to protect, the property values and amenities of all properties within the community and to provide for the maintenance, repair, and upkeep of the exterior of all residential townhomes and the Common Elements, as hereinafter defined; and to this end, desires to subject the real property shown upon the attached Exhibit “A1”, to the coverage of the covenants, conditions, restrictions, easements, charges, and liens hereinafter set forth in these documents, each and all of which is and are for the benefit of said property described hereafter, and each Lot Owner, family member, guest, and tenant, and occupant thereof; and…
Note from the townhome HOA CC&Rs example provision above: “…subject the real property shown upon the attached Exhibit “A1”, to the coverage of the covenants, conditions, restrictions, easements, charges, and liens hereinafter set forth in these documents…” Enforcement of this passage is where the HOA is given the authority per the CC&Rs. Of course, the CC&R are always subject, and could be superseded by state or even Federal statutes, with that the CC&R’s are the rules that must be followed by the HOA. However, for all intensive purposes, this is where the HOA authority begins, and this is defined or laid out in the rest of the CC&Rs of the HOA.
A competent HOA property management company will advise that there are legal access issues with townhome and patio home HOAs. Caution must be taken since there is a legal access issue with regard to the HOA having access to private property or the property of a member of the HOA. In the context of an HOA, a townhome is typically a single-family dwelling with two or three stories. In most instances, townhomes are attached to other townhomes by a party wall.
One key point with townhomes is that the townhome structure is deeded with the land. The term “Lot” and townhome are synonymous with each other. With HOAs that are condominiums and are townhome configured (multi-story single-family dwellings) the easiest way to determine if they are deeded townhomes is to search the covenants, conditions, and restrictions (CC&R) for the word “lot.” Use of the word “lot” would be an indication that the units in question are in fact deeded townhomes. A similar structure is a patio home. It can be difficult to define patio homes because the definition can vary not only from state to state, but from neighboring patio HOAs to neighboring patio HOAs. For the purposes of this blog, a patio home is similar to a townhome in that the dwelling is deeded with the land, and the HOA has maintenance obligations to the dwelling and lot.
The townhome lot is typically all the land under the dwelling, and typically, five feet or so directly in front of the townhome. In addition, typically, the land ten to fifteen feet behind the townhome is part of the townhome lot. If the townhome does not have a party wall on one side, the land on that side could be part of the townhome lot as well. The exact amount of land owned would be defined by the deed.
Townhome lots are owned by the individual HOA member and the HOA typically has maintenance requirements in which the lot must be entered upon. For the HOA to enter upon the individual HOA member’s lot, there must be a legal method to perform these maintenance tasks. This legal method is called an easement. In the HOA’s governing documents, typically the CC&Rs, this easement authority may simply be found under the term “easement.” Or easement language could be found under the following headings: maintenance easement, permanent easement, right to enter, maintenance responsibilities. Right of easement language is typically found towards the end of the CC&Rs.
There could possibly be easement language in the architectural compliance provisions of the CC&Rs. A reliable HOA property management company can explain that this easement language in this section may provide for the HOA to enter upon someone’s lot to remedy covenant violations. While this type of provision is prevalent in many HOA’s CC&Rs, entering upon an HOA member’s lot for this purpose needs to be reviewed by the association’s attorney before any action is taken. No matter what the CC&R’s state, entering upon an HOA member’s lot could raise issues in criminal and civil court. These criminal and civil issues may not be overcome by the HOA’s CC&Rs in the view of a judge. Judgment must be used when entering the dwelling of another person regardless of what the CC&Rs state.
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