If you own a home in a planned development, you might enjoy reduced maintenance obligations, as the homeowners’ association (HOA) likely takes care of common areas such as walkways and clubhouses. However, as an owner, you might not be happy knowing that representatives of your HOA could have the right to enter the interior of your home, as well.
To know whether and when someone from your HOA can enter your home, you must look to your development’s governing documents, as well as to any applicable state laws, as described below.
Most planned development’s actions are governed by a set of documents that go by names like “articles of incorporation,” “bylaws,” and “Declaration of Covenants, Conditions, Restrictions and Easements,” as well as any other rules and regulations adopted by the HOA. You must read these to see what entrance rights they give your HOA's representatives.
Additionally, you must look to your state’s laws, which might contain statutory limitations on HOAs’ entrance rights. If so, and there is a conflict with the rights in the governing documents, state law will control.
The right of your HOA to enter owners’ units might be limited, perhaps allowed only in emergency situations. Or they could be rather broad, such as if the HOA is allowed to inspect for rule violations or other reasons.
If you don’t already have a copy of your development’s governing documents, request one from your HOA. If you need help reviewing these, or finding information on your state’s statutes, an attorney in your area can assist.
Most developments (as well as most states' laws) provide that an HOA representative can enter an owner’s unit in emergency situations, or for health and safety reasons. Most owners will not object to this right, since it can help prevent a home from sustaining ongoing damage in the owner’s absence, and prevent damage to adjacent homes.
For example, if the HOA determines an absent owner’s home is flooding and leaking into the unit below, the HOA can immediately send someone to enter the unit to stop the water leak.
Many HOAs also have the right to enter an owner’s unit to maintain common elements. This happens most often with condominium units, where the interior of an owner’s unit might contain systems serving the building as a whole (such as common plumbing or air ducts).
The HOA typically can send someone to enter an owner’s unit to perform common element inspections, maintenance, and repairs. Commonly an HOA must notify the owner a week or two prior to entering.
An HOA might also have the right to enter an owner’s unit to inspect for a violation of the development’s rules or regulations. Typically this is allowed only if the HOA has good reason to believe a violation is occurring. For example, if you live in a development that doesn’t allow pets, and an HOA representative hears a dog barking in your unit, the HOA might have the right to enter your unit to see if you are violating the pet prohibition.
Most HOAs are hesitant to enter an owner’s unit to inspect for rule violations, however. This is because it’s difficult to determine how much evidence an HOA needs to warrant an entrance. If the HOA enters a unit improperly, it risks liability for trespass, and might be in violation of the owner’s privacy rights.
Additionally, notice to the owner is typically required before any entrance to inspect for a rule violation. This makes the entrance right rather ineffective. (“Oops, we got a notice from the HOA, send the dog to Aunt Martha’s for the day!”)
Both HOA governing documents and state statutes usually say something about what type of notice to the homeowner HOAs must give before sending a rep to enter their unit. State statutes commonly require that HOAs provide an owner with “reasonable” notice.
What’s considered “reasonable” depends on the situation. For example, prior notice of between three days and a week might be reasonable for an HOA wishing to enter an owner’s unit to perform periodic common area maintenance. On the other hand, if immediate entrance is necessary for health or safety reasons (such as if there is a fire in the unit), minimal or no notice is probably acceptable.
If you believe someone from your HOA entered (or is demanding to enter) your unit in violation of any law or the terms of the governing documents, you might have a legal case against the HOA for trespass (unauthorized access onto private property).
Additionally, the HOA might be liable for a breach of fiduciary duty if it acts in a discriminatory manner when entering owners’ homes (such as by entering only units whose owners the HOA president is feuding with).
An HOA has a fiduciary duty to act in the best interest of all the development’s homeowners, and to enforce all the rules and restrictions fairly. If the HOA is arbitrarily and discriminatorily entering units, it is breaching its fiduciary obligation to the owners by not acting in the community’s or individual homeowner’s best interests.
If you feel your HOA is committing an illegal or discriminatory entrance, first meet with the HOA’s board of directors to present your views. Bring a copy of the applicable state laws and governing documents. Sometimes an organized and well-presented argument can persuade the HOA to accede to your requests.
If the HOA does not respond, or does not agree with you, an experienced attorney in your can help review your situation and determine whether legal action against the HOA is warranted or advisable.