Published in the ECHO Journal, June 2009
Your board wants to go on a property and correct a covenant violation themselves. Can you? Even if you have legal authorization, should you? Read on for the risks and rewards of using authorization to go onto someone else’s property to resolve a covenant violation.
First and foremost you must review the governing documents for your association, specifically, the recorded Declaration of Covenants. You are seeking to go onto someone else’s property; thus for your authority to stand on the firmest grounds, it must be spelled out in the recorded Declaration, which is the only protection the association has to a claim of trespass. If you locate authority to go onto someone else’s property, make sure it is authority to take the action that you want to take. Don’t make the mistake of thinking if your Declaration authorizes you to go onto someone’s property to maintain, it that it also gives you authority to install; those are different items and each requires specific authorization. Also, make sure that you know if you do go on someone else’s property and do work that you can recover the costs of that work. While this sounds silly, if there is nothing in your Declaration that states you can recover the costs, you may have authorization to do work but no authorization to recover the costs of your work.
If you find the authorization to go onto someone’s property to complete the task of correcting a covenant violation, be absolutely certain that you follow every obligation prior to entering the property. Send the appropriate notice, provide the hearing if required. Make sure you jump through every hoop.
If you have authority and you have followed every procedure, should you actually go on their property? Self-help is always a risky tactic to employ if the property has occupants. Many people believe their home is their castle and will defend the property. However, if the property is vacant, the risks discussed below are reduced.
One risk to the association and its agents, is that the occupant will call the police, claiming breach of the peace, trespassing or criminal mischief. Another concern is the readiness of property owners to protect their property by force. Seriously, some people are very protective of their property rights and may not be against protecting their property by force, including deadly weapons. The police will generally not enforce the “self-help” provision of the Declaration, unless there is an order issued by a court of law. Without a court order, the police will not allow you to “trespass” onto another’s property. You may be issued a citation or just let go with a warning. Either way, you will not be able to correct the violation.
If your concern is that landscaping needs to be installed, there are issues to consider with this as well. One is it is costly. Two, there is no guarantee that the homeowner will maintain the landscaping once it is installed. Three, how will the association connect a sprinkler system, if that is what is needed or required, as that is inside a home, and there is no provision in any Declaration to go inside someone’s home.
We advise associations to seek a court order before entering onto another’s property to cure a violation. The association should have its attorney send a letter demanding the violation be cured within a short period of time or further legal action may be taken. Since the letter is being sent by legal counsel, often this will compel voluntary compliance by the homeowners, as well as provide documentation to the court that attempts were made to resolve the issues prior to litigation. If there is no compliance in that time frame, the association can proceed with litigation against the homeowners to compel their compliance. The court order will provide that if the owner does not comply within a certain number of days, the association can enter onto the property, correct the violations and charge the owner the costs of the correction.
What is the difference between self-help and litigation to enforce the covenants? Once the association has a court order to enter a property and cure the violation, the association will have the blessing of the court to enter the property and correct the violations. The entry will not be considered trespassing because it is court sanctioned. So, if the police are called, you can show a certified copy of the court order allowing you to enter the property and the police will uphold the order. Better yet, you should contact the police in advance, let them know what you’re going to do and when, and send them a copy of the court’s order. You should also give the owner notice of what you’ll be doing on the property and when. All this ensures that there is no breach of the peace and the association’s agents are protected from potential harm.
If your board is adamant about using self-help to correct a covenant violation, be sure to follow every requirement in your governing documents. Once that is done, give the owner ample notice that someone is going to be on their property and when that will occur; then complete the maintenance work as quickly as possible, and be sure that no damage is done to the owner’s property. Finally send a letter to the owner demanding payment for the costs of the work.
Debra Oppenheimer is an attorney at HindmanSanchez in Arvada, Colorado, a legal firm that serves as counsel to more than 1600 homeowner associations. This article is reprinted with permission from the May 2009 issue of the HindmanSanchez newsletter, Community E-ssentials.