Are they trespassing?

Rhiannon,

We had an independent contractor serve as our inspector once.
They also entered property to do the inspection.
One member contacted an attorney who sent a letter on their behalf and informed the Board that if a member enters the property again without the owners permission that they will contact the police and file a trespassing charge.

Our Board consulted with our attorney.
Our attorney said that what was done was indeed trespassing.

That contractor was fired and all inspections are now done from the common area (sidewalk/street/rear common land).

Therefore, take a look at your governing documents and see if there is some section that gives the Association the right to enter your property without permission. If not, you may want to consider a similar solution (have an attorney write a letter on your behalf).

As for the violations, you are aware of them and take the letter as it sounds, a Board member who is concerned and wanted to try and give a heads up to a friend.

Mold on the deck can be cleaned up with a scrub brush and a mild bleach solution.
You don't need to wait for a power washer.

Since I don't have a pool, I can't offer suggestions except to stir up the water and see if the filter system can eliminate some of that pollen.

Say, Rhiannon, are you sure the PM or board came into your backyard? How did they get in? Because you have a pool, shouldn't the gate(s) be locked at all times? Or not?

If you find in your documents that that no one can enter without your permission or a certain number of hours notice, you might want to proceed with legal help, but your HOA still will want you to clean up your premises

Meantime do whatever necessary to clean your pool water & deck. A spray bottle with bleach in it is cheap, easy and effective for mold. Get the vacuum fixed ASAP.

I also agree that the Board president wrote a very friendly letter and is trying very hard to be nice. He also makes it very clear that the condition of your pool areas is visible from outside your property. If your HOA has rules about maintenance in your yard, you need to abide by them.

Many Covenants do allow management to enter a unit or property if a "dangerous" situation exists without the owner's permission, especially if unable to contact the unit owner. In some docs, management must have a key to the unit for such situations.

The OP has no proof, only a suspicion, someone entered her property. While not justifying what the MC did, they could have been within their rights to do so.

I would doubt the property manager or the board president poses some sort of security threat to this homeowner.

And it seems to me the OP is trying to change what should be the focus of those involved. Clearing up any violations.

If I lived in Florida or any other place where you have the threat of Zika virus I would be concerned about green appearing stagnant water.

I also wonder why this president felt the need to contact and explain the violations being issued ahead of their arrival.
Seems they are interfering with the process put in place. Would this president e-mail any and all residents being issued violations?
Seems they are running the risk of complicating this process.

That will depend on your governing documents.

In my state, "Entering or remaining unlawfully in a fenced residential yard" is criminal trespass in the first degree. (ARS 13-1504(2).) This may be prosecuted as either a felony or misdemeanor.

Well this sounds like a rational reaction for sure. Contact an attorney because your daughter prefers not to wear clothes around the house and the board president who you suggest treats you fairly now poses some threat to you. So you are seriously going to suggest they did this in an attempt to see your daughter?

By all means please update us on the status of your legal action against this HOA. I would certainly enjoy hearing what you lawyer has to say. Perhaps you can sue for damages?

And hopefully in between meetings with your legal representation you can perhaps address the issues for which you were written violations. The vacuum for the pool is broken and you simply didn't have time to address that but you have more than enough time to seek legal options in such a minor, concocted "security threat".

I would hope the board president might learn her lesson that attempting to treat some people with respect and humanity in some cases creates more problems that it ever solves. Should have sent out violations and allowed them to work through the usual process.

What nonsense....

Tim do you really think this has anything to do with a 2 year old child? To suggest or imply the board president and or the property manager were now potentially gawking at your child is fantasy. And in my opinion quite a low road to take using your child in such a way.

And contrary to what some have implied I would doubt any police department would file charges for trespassing based on the information provided. You have a board president and the property manager
inspecting the property for reported violations, which they found to be true, my guess they arrived during daylight hours.

Recently, we had another poster who demanded landscapers obtain their permission to service their property paid for by the HOA. Including them using .25 cents worth of electric to trim their bushes. Do you really expect people to knock on every door to each home to announce their presence? This issue is in my mind as ridiculous.

Now to waste time, money and effort speaking to a lawyer?

I just have to wonder whether the OP will extend the same courtesy shown to them by the board president and in an e-mail explain to the president they now plan to seek legal advice as to how they might prevent future inspections to their property? No good deed goes unpunished. It was after all the president, who this OP suggests not to have any problem with, who now is being cast as someone perhaps peeking at an unclothed 2 year old. Yeah, that's how you treat people.....

No I do not. That is why I said don't provide reasons not to enter, simply specify that they did not have permission to enter.

As I explained in my earlier posting, my Association had an issue where property was entered without permission for inspections. I certainly had an issue with this (as we are not a condominium and I own the land, the home, etc.). Others within the Association also had issues with this (entering the property without permission). One individual (not me) had their attorney write a letter to the Board about the issue and claimed it was trespassing.

The Board, wanting to prove otherwise, contacted our attorney for a legal opinion. Per that opinion:

"The Declaration [CC&RS] does not expressly give the Association, nor its agents, the right to enter lots for the purpose of inspections. The Association does, however, have the right to enter lots to perform "obvious" maintenance or repairs under Article IX of the Declaration. Article IX is silent on whether/how the Association determines a maintenance or repair issue is "obvious". While it is certainly arguable that the right to enter the lot to "inspect" is implied in order to determine whether maintenance or repairs is required, I recommend against relying on such an argument in lieu of express authority. Anytime you are dealing with action that could result in criminal repercussions (i.e., trespassing) express and unassailable authority to justify such action.

Accordingly, we recommend [the Association] remain on common area property while conducting inspections, such as sidewalks and streets, and note those homeowner violations that are visible or "obvious" from the common areas of the community only. [The Association] may always cite the owner based on perception and allow the owner the opportunity to refute the citation"

I think it has everything to do with not wanting one's naked two-year-old photographed along with infinite other privacy reasons, as the courts have repeatedly found in none other than the Constitution. I believe all these are behind what TimB4's HOA's attorney wrote. Especially in this day of instant publication to the world via the internet. Property managers, board members, board appointees, and all HOA members need to stay out of other members' residences, unless it's either an emergency; otherwise provided for in the governing documents; or permission has been granted by the home owner. Rhiannon has admitted she is at fault regarding the pool and said it will be fixed within a day. Her household has dogs as well (read: dog bite liability for her if some out-of-line HOA representative goes into her yard and gets bit). I think her question is completely justified. After the pool problems are fixed, she should get clarification from the Board or property manager about entering her property.

I agree with THIS part of Augustin's advice: "After the pool problems are fixed, she should get clarification from the Board or property manager about entering her property."

Look, the PM is trying to keep you from getting fined, Rhiannon. Do you really want to pay an attorney for advice AND pay a fine too??

I also hope Rhiannon can read her own CC&Rs re: if and/or how the Board or its representative (the PM) may enter her private property. Perhaps she'll let us know. She assumes they entered, yet the neighbor complained without entering it. In addition, the Board president wrote, "lots of eyes, even from across the lake," which suggests that more than one household can see Rhiannon's back yard.

@jond1 you are completely missing my point. I never once stated they are gawking at my child taking photos of her. I stated if they are on our property taking photos when we are home they could easily take a photo of her which is not appropriate. Regardless I posted here asking a question to find out if it is trespassing for the community association to enter our yard unannounced a simple yes or no could have sufficed instead of your rude comments which are completely wrong. Just because someone buys a home in a gated community they still deserve privacy.

Rhiannon S Fla: You may respectfully want to cut some slack for the NEW property management company which may not yet know what hopefully you already have researched : what is the physical boundary of your unit ?

You might be surprised if - IF - your lanai porch or verandah turns out to be outside your unit boundary but actually designated as a form of exclusive use common element.

That said, management intrusion without consent at doorstep or a non-emergency response without prior Notice, is tough to justify. Worth checking your documents and whichever Florida statute applies to your ownership to establish exactly what & where management has a right to go.

In these disputes or misunderstandings respectfully battles should be carefully chosen. Life's short.

I am not missing your point it simply makes little real sense to me. Do you honestly believe the property manager or this board president would take a picture of your child? My guess there would be zero chance of that for numerous reasons.

Your actions resulted in the need for these folks to visit somewhere around your property. If not for your lack of maintaining the property this visit would never have been necessary. And to suggest this is now a privacy issue, you fear your child may be photographed without cloths by the board president and this requires you now consult an attorney. My view way, way way to much of a response.

According to you the board president was attempting to avoid this becoming an issue for which you might be fined. Sounds like a decent human being. In return you now accuse her of not only trespassing but potential child abuse. How nice.

Perhaps if you read the Fl. Criminal codes and understand what constitutes actual trespassing and the reality that more than likely this inspection does not rise to a criminal act you might Tap your breaks on this one.

Perhaps contact the board president and discuss this minus the lawyer and the accusations of this being a criminal act. Or a violation of your privacy.
Way way overblown.

Or you can contact a lawyer, waste your time and money and insult the board president for attempting to resolve what should have been a minor issue.
Your choice.

But I imagine you miss much of this. As already suggested life is short. In my world this morning s not a matter that requires legal services. More a private conversation perhaps between you and the board president just like she attempted to offer you.

Dave

Depending on how your Covenants read, you could be wrong.

RhiannonSFLA :
The real physical facts & even which Florida law applies to you, are unknown. If it did 'enter' the physical unit boundary maybe management should instead have knocked on the door for consent. Or served a Notice of entry by themselves. Or left it to the municipality . . .

But the positive side of this respectfully seems to include that the association president appreciates your situation. There looks like a sincere desire NOT to have you on the wrong side of what could be driven by a public health fear. As a parent also you might want indications of a genuine public health concern investigated albeit lawfully.

Property & civil rights are genuine issues. Many associations - & management - like yours may have lots of skillset problems. Police snooping without warrants is also a big issue ( my own jurisdiction has seen bigtime judicial concern with warrantless police intrusion into condo common elements, without even approval by those charged to govern them ).

I don't think that evidenced public health risks, respectfully, are usually the place to fight even Fourth Amendment issues transposed onto homes.

Well Dave then how did the neighbors come to see the violation? Were they too trespassing?

It does matter in the real world this trumped up claim will go nowhere. Do you see any charges being filed? Incarceration maybe?
Do you not think the police have more pressing things to do?

Say the neighbor's kids hit their baseball over the fence and into your yard. When they run over to retrieve it do you rush to file criminal trespassing charges?
After all according to some of the logic here criminal behavior occurred. Perhaps they too well taking pictures....mmmmmmmmm.

Maybe I missed it, but has the OP ever stated that they know for a fact that persons trespassed onto their property and took pictures, or is it merely being assumed?

I see nothing in the words of the Board Member that indicate they were actually on the OPs property looking at things.

If a neighbor (perhaps one across the lake as the Board Member seemed to hint at in the email) is able to complain about what's going on in the OP's back yard, then it stands to reason that unless the neighbor was trespassing as well, then they have the ability to see into the back yard from some common space or from their own property.

Assuming that's the case, whatever pictures might exist could certainly have been taken by this neighbor or by the Board from the neighbor's property, and nobody ever trespassed on the OP's property.

Right, ND, I've asked your question too and receive no reply: "Maybe I missed it, but has the OP ever stated that they know for a fact that persons trespassed onto their property and took pictures, or is it merely being assumed?"