Good advice, no board trespassing.

Started by TerriS6 • 15 replies • 310 views

💬 Join us to post & get advice from 50,000 HOA & Condo leaders.

⚡ Takes 30 seconds

Already a member? Log in

TerriS6 (California)
Posts: 3,284

Posted:

Our board is planning to put CC&R amendment before members so they can clear brush on separate interests then bill the member for the work. Here is some good advice for board members from hoalaw.tinnellylaw.com:

Court Order or Consent Required to Enter Onto Property

Although many CC&Rs have provisions allowing an HOA and its agents to enter onto a property upon prior notice to cure certain compliance issues, it is recommended for the protection of the HOA and its vendors that a court order first be obtained before entering property without advance express consent. This is the case even if the HOA believes the property is unoccupied because California case law holds that a contractual right to self-help is not a defense to a claim for forcible entry. (Glass v. Najafi (2000) 78 Cal.App.4th 45, 48–49, 92; See also Daluiso v. Boone (1969) 71 Cal.2d 484, 493, “Regardless of who has the right to possession, orderly procedure and preservation of the peace require that the actual possession shall not be disturbed except by legal process.”)

MelissaP1 (Alabama)
Posts: 13,836

Posted:

Again bad advice on situation as you appear to want a violation to stay instead of being addressed. If it is okay with everyone else we will seek a lawyer against the HOA preventing them from doing their job plus make everyone pay for it. Let the brush lay as it is and complain the HOA does nothing about it... Did I get that situation right?

Former HOA President

TerriS6 (California)
Posts: 3,284

Posted:

No. You missed the point.

TerriS6 (California)
Posts: 3,284

Posted:

Residential fire clearance standards are set by state law in California, not by HOAs.

MelissaP1 (Alabama)
Posts: 13,836

Posted:

No. I think you continue to miss the point. Relegating your HOA with no enforcement powers except for your imagination. The HOA has these choicest when enforcing rules. They can fine someone. They can pay to correct the issue and bill the owner. That may require "trespassing" but a court can order entrance to a property to correct an issue. It happens all the time in cities with people with violations. The HOA isn't living in a bubble. Even if you say they are California rules, the HOA is the one that puts them into action.

Former HOA President

TerriS6 (California)
Posts: 3,284

Posted:

We have no rules and no fines. Board’s power is restricted to maintaining the roads and greenbelt.

ElleN (Idaho)
Posts: 4,420

Posted:

Quote:

Posted By TerriS6 on 03/10/2024 6:08 AM
Our board is planning to put CC&R amendment before members so they can clear brush on separate interests then bill the member for the work. Here is some good advice for board members from hoalaw.tinnellylaw.com:

Court Order or Consent Required to Enter Onto Property

Although many CC&Rs have provisions allowing an HOA and its agents to enter onto a property upon prior notice to cure certain compliance issues, it is recommended for the protection of the HOA and its vendors that a court order first be obtained before entering property without advance express consent. This is the case even if the HOA believes the property is unoccupied because California case law holds that a contractual right to self-help is not a defense to a claim for forcible entry. (Glass v. Najafi (2000) 78 Cal.App.4th 45, 48–49, 92; See also Daluiso v. Boone (1969) 71 Cal.2d 484, 493, “Regardless of who has the right to possession, orderly procedure and preservation of the peace require that the actual possession shall not be disturbed except by legal process.”)

(bolded emphasis added by me) Forcible entry is certainly a dumb move by a HOA.

However I believe wildfire, insurability and lender-approval concerns may result in HOAs having some unique legal rights here, said rights overriding certain covenants pertaining to entry on another's lot.

TerriS6 (California)
Posts: 3,284

Posted:

Each owner is responsible for his own insurance. The insurance companies set their own clearance standards. The HOA has no property insurance. The state enforces its own clearance standards.

MelissaP1 (Alabama)
Posts: 13,836

Posted:

So who insured the common area? Who also has restrictions on appearances? Mmmm...

Former HOA President

TerriS6 (California)
Posts: 3,284

Posted:

That's actually very funny because the only common areas are the roads and greenbelt and the greenbelt is so overgrown and filled with fallen trees and poison oak that the board could never enforce such an amendment. As for appearances, they are irrelevant here.

MelissaP1 (Alabama)
Posts: 13,836

Posted:

And this advice applies to every HOA? Do not think so.

Former HOA President

TerriS6 (California)
Posts: 3,284

Posted:

Wherever private property and HOAs intersect.

MelissaP1 (Alabama)
Posts: 13,836

Posted:

So according to your logic, if a tree owned by the HOA fell on a house, they would not be allowed on to remove it. However everyone can complain the HOA is not doing their job. Which apparently is forcing everyone to use their dues to pay for a lawyer to fight the HOA from coming on the land.

Good logic if your clueless and sue Happy.

Former HOA President

TimB4 (Tennessee)
Posts: 21,059

Posted:

I posted several years ago that our attorney advised us, regardless of any authorizations in the governing documents, NOT to enter someone's property without permission or a court order. Otherwise, it could be trespassing.

In the example of the tree, I actually had that happen when I was on the board. Although it did not fall on the house, it did fall onto the fence, across the yard, across the deck and hit the patio door. The association removed the tree from common area to the property line. Their insurance cleared the tree from the property line to their house.

If the tree fell on the house, the resulting action from the HOA would be the same and the Fire department and appropriate government agencies would decide how to remove the tree from the house and if the house could be safe or unsafe to occupy. Again, the homeowners insurance would take care of the rest.

LetA (Nevada)
Posts: 2,679

Posted:

California is a bad example when it comes to forestry and fire management.
When some jurisdictions make it illegal to use a submersible pump in your swimming pool
with a fire hose to prevent your home from burning down, you know Cali is a problem.

Personally I would err on the side of caution and remove the dry brush before it becomes a
tinder box.

TerriS6 (California)
Posts: 3,284

Posted:

Quote:

Posted By LetA on 03/10/2024 5:00 PM
California is a bad example when it comes to forestry and fire management.
When some jurisdictions make it illegal to use a submersible pump in your swimming pool
with a fire hose to prevent your home from burning down, you know Cali is a problem.

Personally I would err on the side of caution and remove the dry brush before it becomes a
tinder box.

I've never heard of a jurisdiction banning pool pumping to fight fires but stranger things have happened.
Yes, CA has been a terrible example of forest management. Ban logging for decades then let homes burn and sell the burned logs at a discount.
Our members maintain their properties better than the board maintains the common areas. The board president has a 12' high pile of dead trees on his own property that has been there over 5 years.

🎯 You've read this entire discussion

Join the conversation with 50,000 HOA & Condo Leaders:

✓ Ask follow-up questions
✓ Share your experience
✓ Get expert advice
✓ Access 350,000 discussions

Create Free Account →

⚡ Takes 30 seconds

Already a member? Log in here