Handling Trespassing Situations In Your HOA
Trespassing in HOA communities is a common concern. Usually, the situation involves either the HOA entering a homeowner's property or a homeowner entering community property. Regardless of the actual situation, the association must know how to handle this issue. Failure to provide awareness can result in severe consequences for either party.
What Does Trespassing Look Like in an HOA?
Trespassing—in the context of a homeowner's association—means stepping foot on a person's property without consent. Generally, a member of the HOA community can enter a fellow member's property for the following reasons only:
Maintain work or repairs on a common element
Inspect for violations of the covenants or operating rules
Emergencies
Of course, the association must provide the homeowner with sufficient prior notice of the intent. The lead time varies from association to association, so it is imperative to check the governing documents for such provisions.
Discern Between A Trespass and a Violation
The unauthorized entry into a property does not always equate to trespassing. For instance, an association may have a rule that only allows homeowners in the community pool area during specific hours.
If a homeowner enters the pool area outside those hours, the HOA may charge the homeowner with trespassing. However, classifying this as trespassing is extreme.
Therefore, associations must learn to differentiate between trespassing in HOA communities and a mere violation of the rules. For example, in the above scenario, the homeowner broke a rule about the community pool hours. As a result, the HOA can charge the homeowner with a fine, but calling authorities is unnecessary.
It is, however, considered HOA trespassing if the person entering the pool (or any other common area) is not a member of the HOA community. The same goes for people who are unapproved tenants residing on a property or those in a foreclosed property. Therefore, the association can charge the violators in this case with trespassing.
Before Entering a Homeowner's Property, Know What to Do
While the association can enter a homeowner's property under a few circumstances, the HOA must first discern if entering is necessary. Mishandling the situation can result in a wide array of consequences. Therefore, the HOA must remain cautious when entering a homeowner's property to correct a violation. Some may perceive it as trespassing. Here are the things an association must take into account:
1. Check the Governing Documents and State Laws
Always check state laws and the association's governing documents first. An association's Declaration of Covenants, Conditions, and Restrictions (CC&Rs) should contain provisions outlining the HOA board's authority to enter a homeowner's property. It is crucial to pinpoint precisely which part of the documents gives the board the power to enter someone's property and take the intended actions. Just because the Declaration allows the HOA to enter a homeowner's property, it does not mean it has the authority to install or alter anything without permission.
State laws may also play a part in allowing associations access to homeowner property. In Florida, for instance, homeowners associations have the right of entry under emergencies, as well as reasonable cause. However, it is essential to note that if state laws and an association's CC&Rs come into conflict, the former always outweighs the latter.
2. Consider the Risks
The HOA must evaluate the risks against the benefits of entering a home.
The homeowner may violate the rules, but entering their property will not always solve the situation. The most common pitfalls involved are:
Angering the homeowner involved
The physical safety of the association's representative
Legal repercussions
Some people will go to any lengths, however extreme, to safeguard their property. If a combative homeowner is concerned about their property rights, the HOA representative may face danger. Residents may also own aggressive pets that can seriously injure the representative. If a homeowner phones the authorities, the police typically ignore the association's "self-help" provisions in the CC&Rs. Instead, they will likely take the homeowner's side and ask the HOA to vacate the premises.
3. Order a Court Order
If the situation calls for entry into a homeowner's property, the association must obtain a court order. This process is the absolute last resort an HOA must consider. Before getting a court order, the association must first exhaust all possible alternative courses of action, including providing sufficient notice, imposing fines, or even organizing a hearing. Taking legal action can be costly and time-consuming, so it must not take precedence over all other options.
After doing everything in its power to resolve the issue and still arriving at a fruitless outcome, the HOA can then involve an attorney. Legal counsel can send a letter to the homeowner in question. This letter will double as documented proof that the HOA tried to resolve the matter through all reasonable means. Suppose the homeowner chooses to avoid the violation. In that case, the HOA can proceed with litigation and obtain a court order, allowing the association access to the homeowner's property to correct the violation.
Not Everything is What it Seems
Every association will deal with trespassing in an HOA at one point or another. In these situations, it is vital to remember that not everything is as straightforward as it seems. Before confronting the situation head-on, the HOA must step back and consider all the elements of the situation. Determine whether it counts as trespassing, check the state laws and governing documents, and weigh the pros and cons of entering a homeowner's property.
Contact Us
Many associations struggle with enforcing HOA trespassing policies and dealing with violators, which is why a vast majority turn to professional HOA management services. However, feel free to contact Condominium Associates—we are here to help you navigate the issues!