Question for resident's whose access to amenities has been revoked

Wrong approach. Do you have a dining schedule in place? Are you still under developer ownership? If so, they are in charge and also right.

You can not just immediately fine someone
Had to be a period of time for them to react and correct. So 30 days is typical during the fine process. Which is different than restricting access. Which do you want ?

That's why my question is whether or not it can be considered trespassing.

They committed some kind of violation, so their access is restricted. Can they simply break-in to the clubhouse with impunity every day, since they "react and correct" by leaving it? Is the problem simply that our Fines and Enforcement policies did not consider this?

So the answer, then, in your opinion, is that it is not trespassing.

Have you asked the association attorney - if not, do it. This might not meet the definition of criminal trespassing, but if residents are still accessing and using the amenities when they know they don't have access, you may have to come up with a better way to address this.

Are there any security cameras around the entrances so you'd know what was going in and out and who has access or not? For a moment, I thought you might also consider sanctioning the people who let these folks on, but they may or may not know about the suspension. For privacy reasons I don't think you can post a notice saying something like "DO NOT LET THE FOLLOWING PEOPLE IN BECAUSE THEIR PRIVILEGES ARE SUSPENDED AS OF (DATE)."

If you did get some sort of camera evidence, you could send a nastygram to the resident warning them the fines will increase if they continue to engage in this behavior. This way, you wouldn't have to bring the other homeowners into it - I doubt these folks would bring in their neighbors to say "yeah, I let in so and so because this violation is BS". Of course, if someone is silly enough to admit that, maybe there should be a fine against them as well....

Perhaps it's time to skip the fobs and post someone at the entrance who can double-check the person against a list of homeowners with access - fob or not, you have to be on the list in order to gain entry. However, that would cost money and create a line that would annoy people and some may still bum rush the monitor.

Whether or not it is trespassing is a legal question that may vary from state to state and even city to city when it comes to enforcement.

I would say that it is probably not trespassing because the members are owners. Trespassing, in most states, is going on the property OF ANOTHER after being forbidden to do so. An owner cannot trespass on their own property.

DavidG45,
I would look at your CCRs, DADs or Bylaws and see if it state anywhere about "Good Standing" if this is in yours anyone who has violations, late on fines or ARC violations may be considered Not in Good Standing.

In Ca. we had to send them a note and give them a minimum of 15 days to respond or show up at an Executive session. If they fail to show the board can act in the best interest of the HOA and remove privileges. I would also send a letter or email to the entire HOA reminding them that they are not to open the door for anyone who may be asking for access. Since they do not know who may or not be in good standing. As others have mentioned if you have video of an owner who continues to open the door for strangers, I would call them in an warn them that this could be grounds for privileges to be suspended.

Trespass of owners came up at a HOA trial I observed recently. An owner was allegedly harassing the manager in the HOA clubhouse. The manager called the police. The police issued a "trespass notice." This supposedly gives the requester (the corporation, as represented by the manager) the right to press charges (or pursue a civil action for trespass? not sure) if there is a repeat of the trespass. The notice serves as the police's witness statement?

At the trial, the owner queried board members about whether they could trespass her, given that he (the owner) has an ownership interest in the property.

What was interesting is that the HOA backed down from claiming it had made any such request to "trepass" the owner from the clubhouse. The HOA insisted that the police alone decided to issue the "trespass notice." Yet the notice is only issued when a corporation requests it. I thought the police had violated the owner's civil rights (by being state actors taking away an owner's property rights, in violation of the 14th amendment et cetera). The HOA has abetted this. My theory is the HOA's attorney advised the HOA to back away from this, out of fear of liability.

DavidG45, I think trying to "trespass" these owners (who have had their amenities suspended) is legally problematic. Why? Because they have an ownership interest in the various amenities. It may seem a technicality and yet I think it supports the argument that there has been no trespass.

Why doesn't your HOA have a schedule of fines?

Thanks. There does seem to be a consensus here that “trespassing” is not what has occurred.

So the solution is to add that to our Rules and Emforcements.

Thanks to all who chimed in here - it was a great help.

David is NOT saying he'll try to add trespassing to their rules, Melissa.

B&E does not mean physical damage has to occur for trespassing, all one has to do is step over the threshold. If the door is held open or the door don't close and latch, if the person who is denied access for cause
crosses the threshold, in many jurisdictions that is considered a trespass.

There seems to be a misunderstanding about WHAT you'll add to your rules, David. You wrote that is seems ...."'trespassing' is not what has occurred." So what will a new rule state?

I still think your missing something here. Are you wanting to restrict access to an amenity because someone may violate a rule such as "Leaving their garbage can out on Saturday"? Garbage cans are to be taken in by Friday night? This isn't a violation that justifies amenity restriction. That is a "FINE" event. Which one has 30 days to appeal the fine. Maybe they have an excuse they were in the emergency room Friday night and unable to take the can in due to a broken leg?

Amenity restrictions usually is because of non-payment of dues. Which again, there is a time period involved in resolving that as well. There is usually a grace period of 5 - 15 days where a late fee may apply. The accounting alone may not notice a non-payment for 15 days. After that, then late notice may be sent out. Plus the person may pay up the next month with the late fee. Again another 30 day period of time to play with.

So are you just mad about the situation of people using the amenities you want to make it punishable without taking the proper process? Amenity access restriction isn't a knee jerk reaction. There is a process involved even if you don't like the time line.

I am NOT saying the HOA can not. It's just seems David wants IMMEDIATE action. The reality is there is not an immediate reaction in a HOA. There is a time where you are given to correct and/or appear in front of the board. He was saying that the 30 days the Developer gives isn't right. I disagree to the TIME LINE.

Review your violation/fine schedule. Is it noted in the CCR's, By-Laws, or just the R&R's? R&R's are simple to update with 30 days notice. You may be able to alter the 30 day period. We have also been advised by our attorney that there is wiggle room in the violation process depending on the severity of the violation. Safety and security issues must be dealt with immediately.

If all your amenities access are driven by fob's, you may be able to cite the violators who allow them access also. We don't have fobs, but have secured keys. Hard to take a key away from someone, but those letting them in can be violators also. Although resident's are hesitant here to not just let someone in.

We've only had 1 issue about trespass and it was a renter. Once the Board took away amenity use after a hearing, the police were called when they used the amenity. We showed them the hearing letter and they notified the renter, with a BM present, that they were now allowed to use the amenity and they would be cited for trespass if reported using them in the future.

Our local police dept. also can register an amenity as a no trespass zone. It requires registering yearly. If anyone is within the confines of the area inside of the "No Trespass" hours, a call to the police authorizes them to cite for trespassing. Renter, owner, anyone. We use it to keep people from using the pool after hours.