Results 1 to 7 of 7
  1. #1
    Join Date
    Jul 2010
    Posts
    6

    Question When Can HOA Enter Private Property

    I live on a Virginia Commonwealth DOT posted "Private Drive" (there is no through-way).

    Virginia Code § 46.2-100 specifically states: "Private road or driveway" means every way in private ownership and used for vehicular travel by the owner and those having express or implied permission from the owner, but not by other persons. § 18.2-119. Trespass after having been forbidden to do so; penalties -- If any person without authority of law goes upon or remains upon the lands, buildings or premises of another, or any portion or area thereof, after having been forbidden to do so, either orally or in writing, by the owner, lessee, custodian or other person lawfully in charge thereof, or after having been forbidden to do so by a sign or signs posted by such persons or by the holder of any easement or other right-of-way authorized by the instrument creating such interest to post such signs on such lands, structures, premises or portion or area thereof at a place or places where it or they may be reasonably seen, or if any person, whether he is the owner, tenant or otherwise entitled to the use of such land, building or premises, goes upon, or remains upon such land, building or premises after having been prohibited from doing so by a court of competent jurisdiction by an order issued pursuant to §§ 16.1-253, 16.1- 253.1, 16.1-253.4, 16.1-278.2 through 16.1-278.6, 16.1-278.8, 16.1-278.14, 16.1-278.15, 16.1-279.1, 19.2-152.8, 19.2-152.9 or § 19.2-152.10 or an ex parte order issued pursuant to § 20-103, and after having been served with such order, he shall be guilty of a Class 1 misdemeanor.”

    Again, I have challenged the Assn practice of entering my private drive and my neighbor's yard to take photos.

    Our Board insists that Association representatives can enter private property at will, based on the Articles of Incorporation. They provided the following Article (excerpted) which is titled "Easements":

    Section 3.2 Easement for Upkeep.
    a)Assn Access. The Assn and any other person authorized by the BOD, shall have the right of access over and through any Lot for the purpose of exercising and discharging their respective powers and responsibilities, including without limitation to make inspections, correct any condition originating in a Lot or in the Common Area threatening another Lot or the Common Area, correct drainage, perform installations or Upkeep of utilities, landscaping or other improvements located on the Property for which the Assn is responsible Upkeep, or correct any condition which violate the Association Documents. The agents, contractors, Officers and directors of the Assn may enter any area of any Lot (including any building) in order to utilize or provide for the Upkeep of the areas subject to easements granted in this Article to the Association.
    b)Entry into Improvements. If entry to an improvement is required by any person pursuant to this section, a request for entry shall be made in advance and such entry shall be make, to the extent practicable, at a time reasonably convenient to the Owner …emergency…shall be immediate.
    Sec 3.3 Limitation on Exercise of Rights and Easements.
    a)These easements are subject to all other easements and encumbrances of record (including those created by this Declaration)
    b)…when exercising the rights and easements granted… (i) give reasonable prior notice

    I contend the Article proves my position. There is no easement, the Assn is not on the plat or deed, there is not a common area remotely close to my drive or property. There is no threat, or Upkeep. There was certainly no notice.

    I have challenged in writing their practice of entering private property under the auspices of their roles on the Covenants Committee whose responsibility by their own charter is three-fold -- Covenants Committee Charter, Article 3, Enclosure 1:
    1. Providing for visual harmony and soundness of repair;
    2. Avoiding activities deleterious to the aesthetic or property values of Property; and
    3. Promoting the general welfare and safety of the owners, their guests and other invitees.

    Please excuse the lengthiness; however I wished to include as much detail as possible.

    Thank You.

  2. #2
    Join Date
    Jan 2007
    Posts
    195

    Default Re: When Can HOA Enter Private Property

    Quote Quoting xgilady
    View Post
    I live on a Virginia Commonwealth DOT posted "Private Drive" (there is no through-way).

    Virginia Code § 46.2-100 specifically states: "Private road or driveway" means every way in private ownership and used for vehicular travel by the owner and those having express or implied permission from the owner, but not by other persons. § 18.2-119. Trespass after having been forbidden to do so; penalties -- If any person without authority of law goes upon or remains upon the lands, buildings or premises of another, or any portion or area thereof, after having been forbidden to do so, either orally or in writing, by the owner, lessee, custodian or other person lawfully in charge thereof, or after having been forbidden to do so by a sign or signs posted by such persons or by the holder of any easement or other right-of-way authorized by the instrument creating such interest to post such signs on such lands, structures, premises or portion or area thereof at a place or places where it or they may be reasonably seen, or if any person, whether he is the owner, tenant or otherwise entitled to the use of such land, building or premises, goes upon, or remains upon such land, building or premises after having been prohibited from doing so by a court of competent jurisdiction by an order issued pursuant to §§ 16.1-253, 16.1- 253.1, 16.1-253.4, 16.1-278.2 through 16.1-278.6, 16.1-278.8, 16.1-278.14, 16.1-278.15, 16.1-279.1, 19.2-152.8, 19.2-152.9 or § 19.2-152.10 or an ex parte order issued pursuant to § 20-103, and after having been served with such order, he shall be guilty of a Class 1 misdemeanor.”

    Again, I have challenged the Assn practice of entering my private drive and my neighbor's yard to take photos.

    Our Board insists that Association representatives can enter private property at will, based on the Articles of Incorporation. They provided the following Article (excerpted) which is titled "Easements":

    Section 3.2 Easement for Upkeep.
    a)Assn Access. The Assn and any other person authorized by the BOD, shall have the right of access over and through any Lot for the purpose of exercising and discharging their respective powers and responsibilities, including without limitation to make inspections, correct any condition originating in a Lot or in the Common Area threatening another Lot or the Common Area, correct drainage, perform installations or Upkeep of utilities, landscaping or other improvements located on the Property for which the Assn is responsible Upkeep, or correct any condition which violate the Association Documents. The agents, contractors, Officers and directors of the Assn may enter any area of any Lot (including any building) in order to utilize or provide for the Upkeep of the areas subject to easements granted in this Article to the Association.
    b)Entry into Improvements. If entry to an improvement is required by any person pursuant to this section, a request for entry shall be made in advance and such entry shall be make, to the extent practicable, at a time reasonably convenient to the Owner …emergency…shall be immediate.
    Sec 3.3 Limitation on Exercise of Rights and Easements.
    a)These easements are subject to all other easements and encumbrances of record (including those created by this Declaration)
    b)…when exercising the rights and easements granted… (i) give reasonable prior notice

    I contend the Article proves my position. There is no easement, the Assn is not on the plat or deed, there is not a common area remotely close to my drive or property. There is no threat, or Upkeep. There was certainly no notice.

    I have challenged in writing their practice of entering private property under the auspices of their roles on the Covenants Committee whose responsibility by their own charter is three-fold -- Covenants Committee Charter, Article 3, Enclosure 1:
    1. Providing for visual harmony and soundness of repair;
    2. Avoiding activities deleterious to the aesthetic or property values of Property; and
    3. Promoting the general welfare and safety of the owners, their guests and other invitees.

    Please excuse the lengthiness; however I wished to include as much detail as possible.

    Thank You.
    The governing documents (which, btw are recorded at the county clerk's office) created the easement.
    You have no constitutional right not to be offended.

  3. #3
    Join Date
    Jan 2006
    Posts
    27,824

    Default Re: When Can HOA Enter Private Property

    section 3.2 a & b is a grant for an easement.

    as long as those articles of Incorporation are recorded and properly referred to, they create a binding grant of easement.

  4. #4
    Join Date
    Jul 2010
    Posts
    6

    Default Re: When Can HOA Enter Private Property

    How do they "grant" themselves and easement right to my property if there is no common property, utility, or need to access for upkeep? The property is my deed and title, not theirs.

    Furthermore, who prevails, DOT, Commonwealth, land owner? You are telling me an HOA can overpower the Law Code?

    I see nothing in the Articles which requires and easement to this piece of property?

  5. #5
    Join Date
    Jan 2007
    Posts
    195

    Default Re: When Can HOA Enter Private Property

    Quote Quoting xgilady
    View Post
    How do they "grant" themselves and easement right to my property if there is no common property, utility, or need to access for upkeep? The property is my deed and title, not theirs.

    Furthermore, who prevails, DOT, Commonwealth, land owner? You are telling me an HOA can overpower the Law Code?

    I see nothing in the Articles which requires and easement to this piece of property?
    You purchased the property subject to all recorded covenants and restrictions, which were recorded at the county courthouse (this is known as constructive notice). Given section 3.2 that you posted in your original post: Section 3.2 Easement for Upkeep. ... there is an easement in favour of the HOA and its officers and directors, contractors, sub-contractors, etc.

    As for your question: the contract prevails. In this case, the Articles of Incorporation, By-laws, and Declarations of the association, all of which create covenants and restrictions (e.g.: what you can and cannot do on the land, what colours you can or cannot paint the house, whether or not you can have sheds and other outbuildings, whether or not you can park overnight in the driveway or if the vehicle must be garaged, whether or not pickup trucks are allowed on the property, etc.) on the land and structures within the area they cover.
    You have no constitutional right not to be offended.

  6. #6
    Join Date
    Jan 2006
    Posts
    27,824

    Default Re: When Can HOA Enter Private Property

    Quote Quoting xgilady
    View Post

    I see nothing in the Articles which requires and easement to this piece of property?
    you missed this?


    Section 3.2 Easement for Upkeep.
    a)Assn Access. The Assn and any other person authorized by the BOD, shall have the right of access over and through any Lot for the purpose of exercising and discharging their respective powers and responsibilities, including without limitation to make inspections, correct any condition originating in a Lot or in the Common Area threatening another Lot or the Common Area, correct drainage, perform installations or Upkeep of utilities, landscaping or other improvements located on the Property for which the Assn is responsible Upkeep, or correct any condition which violate the Association Documents. The agents, contractors, Officers and directors of the Assn may enter any area of any Lot (including any building) in order to utilize or provide for the Upkeep of the areas subject to easements granted in this Article to the Association.
    b)Entry into Improvements. If entry to an improvement is required by any person pursuant to this section, a request for entry shall be made in advance and such entry shall be make, to the extent practicable, at a time reasonably convenient to the Owner …emergency…shall be immediate.
    Sec 3.3 Limitation on Exercise of Rights and Easements.
    a)These easements are subject to all other easements and encumbrances of record (including those created by this Declaration)
    b)…when exercising the rights and easements granted… (i) give reasonable prior notice

  7. #7
    Join Date
    Jul 2010
    Posts
    6

    Default Re: When Can HOA Enter Private Property

    and 3.2.b.

    do I understand the assn is required to notify the homeowner and arrange a convenient time ...as is feasible, of course?

    1. Sponsored Links
       

Similar Threads

  1. Can Property Owner Use My Right of Way to Enter His Property
    By combatlouie in forum Easement and Right of Way Law
    Replies: 5
    Last Post: 06-30-2011, 12:58 PM
  2. Towing: Towed from Private Unsigned Private Property in Louisiana
    By hai_bar in forum Parking, Towing and Impound
    Replies: 2
    Last Post: 11-29-2008, 07:57 AM
  3. Who Can Enter Private Property Without Authorization?
    By karmar21 in forum Easement and Right of Way Law
    Replies: 3
    Last Post: 07-10-2008, 03:57 PM
  4. Repossession: Can a repo guy enter federal property
    By secrecyguy in forum Auto Loans and Repossession
    Replies: 8
    Last Post: 01-03-2007, 12:59 PM
  5. Quiet Enjoyment: Landlord's Right To Enter Rental Property
    By kc2hvr in forum Living in the Rental Unit
    Replies: 2
    Last Post: 05-31-2005, 11:20 AM

Bookmarks

Posting Permissions

  • You may not post new threads
  • You may not post replies
  • You may not post attachments
  • You may not edit your posts
  •  
 
Forum Sponsor
Real Estate Forms
Real estate forms and contracts, state specific, immediate download.




Untitled Document