Do members or representatives of the HOA have permission to enter a homeowner’s property? Technically, yes. However, although there are times when the HOA can get authorization to enter a homeowner’s property, you may want to think twice before doing so! In many cases, the risks may outweigh the benefits.
What is Considered Trespassing and What Isn’t?
Generally, members of the HOA are only allowed to enter another person’s property during emergencies, when inspecting rule violations, or performing maintenance and repairs on a common element. Usually, the HOA is required to give sufficient prior notice before entering the homeowner’s property.
Note there is no provision in any declaration giving members of the HOA the authority to enter someone’s home, except in emergencies. For example, if a water leak from one unit is affecting an adjacent unit, or if someone notices smoke coming from inside a unit, then it is generally acceptable for the HOA to enter the unit to solve the problem.
Always Check the CC&Rs First
The ‘authority’ for members of the HOA to enter another person’s property will be recorded in your community’s Declaration of Covenants, and your state may also have laws regarding when this is appropriate (if there is a discrepancy between state law and your community CC&Rs, the state law always trumps the community rule). Before taking any action, be sure you locate specifically where your Declaration gives authority for you to go onto someone else’s property, and where it gives the authority to take the action that you intend to take, because the two are not always tied together. For example, if the Declaration authorizes you to go onto someone’s property to maintain common elements (maybe you need to access an air duct, or a pipe located within the wall), you might not have the authority to install or remove anything without the homeowner’s consent. Additionally, find out from your Declaration whether you have the right to recover the costs associated with the HOA’s action. You may be authorized to correct a violation or do certain work on the property, but not authorized to collect money from the property owner to cover the cost of the work.
Related: Understanding HOA Bylaws, Regulations, and CC&Rs
Weigh the Risks and Benefits
Once you know an action is technically authorized via your Declaration of Covenants, you need to decide whether correcting the violation is worth the risk associated with entering someone’s property. There are several considerations to be had, including the physical safety of the HOA representative, the potential for angering residents, or being charged with trespass.
People will protect their home and their property. If you meet with an owner who is very protective of their property rights, you may be met with the threat of force from the homeowner and could find yourself in a dangerous situation. Additionally, unsecured pets on the property could pose a physical threat to an association’s representative.
Police will generally not enforce the “self-help” provision of a declaration, and, if called, will likely ask you to leave unless you have an order issued by a court of law. The police will not allow you to trespass onto another person’s property, and if you persist, the HOA could be hit with a trespassing lawsuit.
There are also practical considerations associated with entering someone else’s property, such as:
- If you are there to correct a violation, will it have been worth your time? For example, if you are correcting a violation pertaining to landscaping, will your costly efforts be maintained by the responsible property owner once installed, or will it simply be a waste of time and money?
- Will you be able to complete the entire project without overstepping? For example, the association would be unable to connect a new sprinkler system without going inside a home to reach the connection point. In this situation, you would want to carefully decide whether correcting the violation is worth spending the association’s money without a chance of it being recouped.
- Are you being reasonable? If you hear a dog barking and the CC&Rs clearly say no dogs are allowed on the property, you have reasonable cause to investigate whether the rule is being violated. Giving advance notice in this situation would give the owner time to take the dog to a friend’s house for the day. However, do you want to enter a person’s property knowing that there is a dog inside and not knowing the temperament of that dog? Probably not!
- In another example, the HOA guidelines may state that homeowners cannot have sheds in their backyards. Is it reasonable for a member of the HOA to go into the backyard of every homeowner to inspect and see if a violation has been made? Though technically allowed, it is likely not practical.
Court Orders Can Cover Your Bases
If the violation is so severe that the association deems it necessary to enter onto another’s property, it is highly recommended that a court order is obtained. Make sure that you have done everything in your power to solve the problem before it comes to this, taking all rule enforcement steps, such as giving appropriate notice, issuing fines, and providing a hearing, if necessary. Trying to obtain a court order without taking steps will at best result in the request being denied.
Fines are on your side in most situations. Fines can cause action that notices will not, saving you from taking legal action. However, when fines don’t work, it may be necessary to involve legal counsel. A letter sent by legal counsel demanding the violation be corrected is often enough to spur homeowners to action. Since the letter is sent by an attorney, it will also provide sufficient documentation to a court that all necessary attempts were made to resolve the issue. If the violation goes uncorrected, the HOA can pursue litigation and receive a court order to be able to enter onto the property, correct the violation, and charge the owner for the associated costs.
Turning the Tables: Should Owners be Charged for Trespass by the HOA?
There are also situations where the HOA will find it necessary to charge a person in the community with trespass. Follow your rules enforcement protocol listed in your CC&Rs and escalate through those channels first. This process should not be taken lightly and should always involve taking prior steps to solve the problem without legal action and/or seeking legal counsel.
The HOA must first decide whether the problem is a violation of the rules or an actual trespass. Trespass should generally be reserved for people who are not residents of the community; otherwise, you risk alienating residents and compromising the unity of your community. Technically, the amenities in the community belong, in part, to every homeowner in the community, so charging a part-owner with trespass is questionable.
For example, if homeowners are at the pool after hours, are they trespassing or are they violating rules? Fining the homeowner for a rule violation will likely work to solve this problem without the messy side effects of declaring a trespass. However, if it is a non-owner who is at the pool after hours, they are trespassing.
Other examples of trespass are when people are in violation of the association’s leasing rules, letting unapproved tenants live on the property, or are on the property after a foreclosure. In these situations, the HOA can file trespass against the violating party.
In all situations, proceed with caution! Make sure that all members of the board are doing their fiduciary duty and following all proper enforcement steps to solve problems before taking drastic measures. Avoid legal action whenever possible. Taking legal action will almost certainly cause discord throughout your community and prolong a situation which could have been handled swiftly, so proceed only when necessary.
If your HOA board is faced with a difficult decision regarding your community, contact William Douglas Property Management today to speak with one of our experienced HOA community managers. Our property managers can help your board navigate state law, determine what response is warranted and the best steps to achieve the desired outcome. With their help, and a thorough review of your community’s Declaration of Covenants, your board will be well equipped to act in best the interests of the community.