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Jessica, This is what I found
"One of your owners has overgrown grass, along with junk in the yard. You've fined him, but he still does nothing to clean his eyesore of a property. What are your association's options? Do your governing documents allow you to enter the property and do maintenance? If so, what must you know before you avail yourself of that authority? Here are your answers.
Review Your Governing Documents
As always, the smartest first step in determining how to proceed with unsightly properties is to check your governing documents
"Self-help needs to be authorized by the governing documents before anybody, whether it's a property manager or board member, goes onto a property to cure violations," explains Penny L. Koepke, an attorney at Ekmark & Ekmark LLC in Scottsdale, Ariz., who represents homeowners associations. "If they go on the property without authorization, it's trespass, and if they remove property, it's theft."
If your governing documents provide authorization, it's still smartāand often requiredāthat you give owners notice before you enter their property. "If there are notice requirements, you need to make sure you follow those as well," says Koepke. "Often documents here in Arizona require 14 days notice or state that the board has to meet and make a specific finding that the property needs self-help and then give notice. Some say that self-help can be done, and there's no notice requirement."
Also be sure that you're going in for a repair that's necessary, not minor issues. "We tell clients you've got to limit entry to true life, safety, and health issues, not just something that's an annoyance," says Koepke. "Overgrown weeds could be a fire danger. Perhaps there's a garage door falling off its hinges and the property appears to be unoccupied."
If your documents don't specifically provide authorization, you're probably out of luck. "The attorneys we work with indicate you're trespassing and you don't have the right do that cleanup if the document doesn't give you that authority,"
One more thing: If you're expecting to be reimbursed for the cost of the work you do, be sure your governing documents not only allow you to enter property but also to get recompensed for the money you spend. "The governing documents I prepare give associations a right to at least maintain the lawns and get reimbursed," says Harry Styron, an attorney at Styron & Shilling in Branson, Mo., who's prepared covenants for more than 100 subdivisions and more than 40 condominiums. "But often other covenants don't provide for that. In that case, I tell associations they'll be doing work at their own expense without the ability to recoup the cost."
Tips for Keeping the Peace
These tips will help you avoid problems with owners and ensure the safety of those entering the property
1) Let someone else do it. If your documents don't authorize entry, or even if they do, think about whether it's best to let another entity do your "dirty" work. "If the property is in a municipality where there's a property maintenance code, sometimes the municipality will take care of the problem," says Styron. "I'm in a rural area of Missouri. People aren't very comfortable with the local government exercising a lot of power over property owners. And sometimes even when associations aren't reluctant to call them, local governments are reluctant to get involved.
2) Consider foreclosure. "If fines have piled up and an owner hasn't corrected the problem or paid the fines, those fines constitute a lien on the unit," says Drewes. "Consider whether foreclosure is a route the association wants to take and if that's the level it's willing to go."
3) Be specific in your notice. "The notice needs to be very specific on when you intend to enter instead of leaving it open-ended by saying you have the right to enter," says Lincks. "Many associations make the mistake of saying, 'We may enter the property in 10 days,'" explains Lincks. "You need to say, 'We're entering on the 11th day' and then enter that day."
4) Take before and after photos. "Take photos of what the property looks like before you do the work so you have documentary evidence to show that the work was necessary," advises Koepke. "Also take photos after to show the work that was done. Keep copies of invoices.
5) Get a court order. "A lot of municipalities don't care if the governing documents authorize self-help," says Koepke. "If called, the police will come and stop the self-help from occurring. That's a municipality by municipality thing. So even though your documents may authorize self-help, you shouldn't do it unless you have a court order stating that you can. We've had situations when our associations brought a copy of the court order, and owners have come out and started yelling and called the police. There was no imminent danger, but the risk is there. You don't know if the owners are going to go in the house and get a gun, a taser, or pepper spray. The police will keep the peace. They'll tell the homeowners, 'They have a court order. Go back into your house.'
6) Without a court order, be very careful. "Be careful of disposing of or destroying an owner's property without a court order," says Drewes. "I had a case in which a unit owner built her deck in an unapproved location, and the association wanted to remove it. They tried to arrange for police observation of the work to ensure there were no problems, but the police and city attorney wouldn't assure the association that they'd help it remove a portion of the deck because there was no court order. In the end, the deck came down, but with a court order."
If you don't have a court order, leave when asked. "Even when the documents allow self-help," says Lincks, "our instructions are that if the police or the homeowner arrive, get out."
Think Twice and Three Times
Even with authorization, some attorneys think self-help is a bad idea because you may be setting a precedent. "It looks real attractive at the time, but will this become an ongoing maintenance issue?" asks Koepke. "You can do it once, but are you opening up yourself to doing every yard in this conditionāand can you afford to do it?"
. "In Florida, we discourage our clients from resorting to self-help even if the governing documents allow them to do it and even in condos where associations have a right to do it for emergency purposes," he says. "Even though you might have the legal right to do it, we try to discourage it."