Can a HOA Place a Padlock on an Automatic Electric Gate

My question involves real estate located in the State of: NC

I own a vacation rental that my guests need to drive through an automatic electric gate to access my property. The community has 99 lots for which there is only one house that is used as a vacation home. One other house is being built but there are no full time residents.

I am not part of the HOA and I rent my house over 200 days a year.

The HOA has had numerous problems with the gate and for most of the 7 years that I have had this property the gate is wide open. They have used padlocks with chains in the past but someone always cuts the chain or takes the lock.

This past Friday the HOA decided to weld a metal box on the gate about 4 feet off the ground in which the combination lock is located inside. In order to open the lock you need to crouch down and look up into the box to set the correct combination. If it were dark outside you would need a flashlight to see into the box. This would difficult if it were also raining and you had glasses on and had to look up into the box holding a flashlight with one hand, then the dial with the other and try to keep your glasses from getting water spots on them.

I'm also concerned that the HOA does not have an on site manager to fix the lock if it were to malfunction. One of my guests could get stuck inside the community with no way out posing a serious safety issue. In the case of an emergency it would be difficult to exit.

One more note the HOA wants my guests to close the gate each time they enter or exit.

My question is what legal restrictions can an HOA impose on an easement holder to enter their property? Can the HOA arbitrarily decide that a padlock should be used instead of the original electric gate?

Do you hold an easement on the roadway?! If not, by what right do you use the easement?

if an easement, what does the grant state regarding rights regarding the easement?

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Quoting daxbatt

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My question involves real estate located in the State of: NC

I own a vacation rental that my guests need to drive through an automatic electric gate to access my property. The community has 99 lots for which there is only one house that is used as a vacation home. One other house is being built but there are no full time residents.

I am not part of the HOA and I rent my house over 200 days a year.

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Are you saying that your property is not part of the HOA subdivision but is landlocked except for access through the HOA subdivision?

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Quoting daxbatt

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One more note the HOA wants my guests to close the gate each time they enter or exit.

My question is what legal restrictions can an HOA impose on an easement holder to enter their property? Can the HOA arbitrarily decide that a padlock should be used instead of the original electric gate?

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The HOA can place any restrictions it wants, including the padlock, as long as it's not denying access and you and your guests would have to comply with those restrictions.

I suggest you take your easement documents to a real estate attorney and review your options.

I do not belong to the HOA. I am also landlocked with my only access through the gate. My deed gives me an easement to use the road to get to my property.

If the padlock was not on the gate when I bought the property, how can the HOA impose any restriction they want? That would seem to put my property in serious jeopardy if I were to try and sell it.

Could the HOA put 10 locks on the gate and require me to open and close the gate each time going through the process of unlocking and locking 10 locks. That seems very restrictive to me.

The HOA could essentially make my land useless if they really wanted to if they were allowed to apply any restriction they wanted.

Yes, I have an easement on my deed. That I have the right to ingress and regress over all roads existing or hereafter constructed within rights-of-way for access to highway 107. Then it states the plates recorded.

Yes, I have an easement on my deed. That I have the right to ingress and regress over all roads existing or hereafter constructed within rights-of-way for access to highway 107. Then it states the plates recorded.

As long as you are being given the combination or key to the lock, your right to ingress/egress is not likely to be viewed as unduly burdened.

What if I just left the gate open. Can they force me to close the gate every time I enter or exit?

Do you have reference to any case law that would support your statement that the HOA can impose any restriction as long as they give me access.

Generally no, they cannot force you to close or lock the gate. They could attempt to seek an order to demand you close or lock the gate. They would have to provide a valid reason for the request.

I agree unlocking the lock as installed is onerous and I would question if a court would require you to be a gymnast to be able to unlock the gate.

You might contact the local fire fire department to ask if the laws/rules in place in the area would allow them to have a locked gate on an access road.

Thanks for the quick reply. I have a lot of renters down there every year and after 5 years of renting the propoerty this is the first time the HOA is concerned about the gate being locked. There is only one other house beside mine and that one has its own gate.

Also, I cannot force my renters to close the gate. I am stationed in Hawaii and cannot monitor the property. I really believe the HOA is trying to force me to stop renting it by making it inconvenient.

I called the fire marshal but he is out until the 5th. I guess I will see what he says on Wednesday.

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Quoting daxbatt

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What if I just left the gate open. Can they force me to close the gate every time I enter or exit?

Do you have reference to any case law that would support your statement that the HOA can impose any restriction as long as they give me access.

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Let's clear up one fact that you did not answer when asked by Jack:

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Are you saying that your property is not part of the HOA subdivision but is landlocked except for access through the HOA subdivision?

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Whether or not you were compelled to join the HOA , is your property part of the original subdivision? Since you have a granted easement to use all roads existing or hereafter constructed within rights-of-way for access to highway 107 , you are using roads that are maintained by the HOA . The HOA has a declaration and articles of incorporation.

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[t]he North Carolina Planned Community Act is the relevant statutory authority in the present situation. Specifically, "[u]nless the articles of incorporation or the declaration expressly provides to the contrary, the association may ... [r]egulate the use, maintenance, repair, replacement, and modification of common elements." N.C. Gen.Stat. § 47F-3-102(6) (2009). "Common elements' means any real estate within a planned community owned or leased by the association, other than a lot." N.C. Gen.Stat. § 47F-1-103(4). Generally, "homeowners' associations have the enumerated powers [in section 47F-3-102] unless their documents expressly provide to the contrary." Riverpointe Homeowners Ass'n v. Mallory, 188 N.C.App. 837, 841, 656 S.E.2d 659, 661 (2008).

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There is also the common law that would permit the HOA to erect a gate and keep it locked.

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[e]ven if the North Carolina Planned Community Act did not apply in the present situation because the roads are not directly owned or leased by the Association, common law contract principles would support the Association's authority to construct the gate and place a video camera at the entrance in accordance with the Declaration, AIC, and by-laws.

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I have chosen this case because you are dealing with a HOA that would (in effect) be the servient estate. There are other cases where the servient estate (not a HOA)can place a locked gate on an easement for security and the containment of animals without it being an undue burden on the easement.

http://scholar.google.com/scholar_ca...05347632454467

In my deed it says I am not part of HOA and I am not part of the original subdivision. The HOA is the serving estate. My argument is not necessarily whether or not they can have a gate at the entrance. It is whether or not they can lock the gate with a padlock requiring me to exit the vehicle to open the gate and exit the vehicle to close the gate. The lock is also inside a metal box which does not have a light inside. So during the night you would be able to see the lock in order to enter the correct combination. The lock is also 4 feet off the ground and you need to crouch down to look up into it. Which is really inconvenient. They also do not have any backup system in place to ensure people are not trapped inside or unable to gain access during an emergency. Nor do they have any emergency contact information if I need to call someone to open the gate in case it malfunctions. It is hard for me to believe that the HOA could create such an unsafe situation for my renters. If someone was trying to leave the property for a medical emergency I would the HOA would be liable if they could not leave to seek help.

In addition, this lock was not in place when I bought the house 7 years ago. This is something they placed on the gate last Friday.