Owners of separate interests that are part of a common interest community frequently get into disputes with their homeowners association that involve issues relating to the extent of the association’s right to have its management personnel, service representatives, and/or others inter into an owner’s property that is not part of the common area belonging to the association.
Under applicable state statutes and/or an association’s governing documents, an association should be granted the authority and right to enter into an owner’s separate property under appropriate circumstances such as to facilitate the repair and maintenance of the common areas and to correct violations of covenants that are contained in the association’s governing documents. The right of entry into an owner’s separate property is a necessary mechanism to facilitate the association’s performance of its obligations and should not be viewed as a “disciplinary action” that is being taken against a homeowner.
In order to facilitate the performance of the obligations that are imposed upon association management personnel, the governing documents of the common interest development should authorize the association to enter into an owner’s separate property for certain specified purposes. For example, state statutes or governing documents may contain provisions that authorize an association to gain access to an owner’s separate interest property when necessary in order to gain access to common areas that are only accessible through the separate interest property or when there is a need for immediate action on an emergency basis.
To minimize potential conflicts over “right-of-entry” clauses, drafters should not include language that is overly broad. An example of an overly broad right-of-entry clause would be a clause that authorizes the association to enter into an owner’s separate interest property “at any reasonable time for purposes of discharging its maintenance and repair responsibilities or to enforce the association’s governing documents without notice to the owner” . Absent clearly defined state laws that would support the validity of such a broad right-of-entry clause, such a clause should not be used. Even if there is statutory support for such an overly broad right-of-entry provision, it is a better practice to have reasonable limitations contained in the language of the Association’s governing documents in order to minimize conflicts between owners and the association over the association’s exercise of its right-of entry into the owner’s separate property.
The language contained in more restricted provisions relating to a right-of-entry should provide that, with the exception of immediate access that is needed to respond to emergency situations, the owner of a separate interest should have notice and an opportunity to respond to the association’s notification of its desire to enter into the owner’s separate interest property. The following is an example of more restrictive language that might be incorporated into an Association’s governing documents relative to the Association’s right-of-entry into an owner’s separate interest property:
Association’s Limited Right of Entry:
Right of Entry, Generally. Without limiting the foregoing description of the Association’s powers, but in addition thereto, the Association and its agents shall have the right and power to enter any Owner’s separate interest property and/or exclusive use common area to perform the Association’s obligations under this Declaration, including:
Exterior maintenance or obligations with respect to individual Residences;
Obligations to enforce the Association’s architectural and land use restrictions;
Any obligations with respect to construction, maintenance, and repair of adjacent Common Facilities; or
Any necessary repairs that an Owner has failed to perform that, if left undone, will pose a threat to, or cause an unreasonable interference with, any portion of the Development or the Owners in common.
Limitations on Exercise of Right. The Association’s right of entry under this subparagraph shall be subject to the following limitations:
The right of entry may be exercised immediately and without prior notice to the Owner or resident in case of an emergency originating in or threatening the separate interest when entry is required onto any adjoining Lots or Common Area. The Association’s work may be performed under such circumstances whether or not the Owner or resident is present.
In all nonemergency situations involving routine repair and/or maintenance activities, the Association, or its agents, shall furnish the Owner or resident with at least 24 hours prior written notice of its intent to enter the separate interest property, specifying the purpose and scheduled time of such entry, and shall make every reasonable effort to perform its work and schedule its entry in a manner that respects the privacy of the person(s) residing on the property.
In all nonemergency situations involving access by the Association for purposes of enforcing the Governing Documents against an Owner in default, the Association’s entry shall be subject to observance of the notice and hearing requirements imposed by Section ___.
In no event shall the Association’s right of entry hereunder be construed to permit the Association or its agents to enter any Residence without the Owner’s or the resident’s express permission.
Association management personnel (officers, directors, and property managers) should be familiar with the provisions contained in their state statutes and in their association’s governing documents relative to the association’s right-of-entry. Their actions relative to entering into an owner’s separate interest property should be consistent with those provisions and, association’s that have overly broad or otherwise insufficient provisions relating to “right-of entry,” should consider the implementation of appropriate modifications of those provisions. Any such modifications should be undertaken with the assistance of experienced professionals who are knowledgeable about the technical requirements for modification of their governing documents.