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Experience:  28 Years In General Practice,
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Is it unlawful to go into a home (condo) if there's a

Customer Question

is it unlawful to go into a home (condo) if there's a problem instead of calling the owner and asking her a question instead of causing problems and having the police called. My daughters cat was meowing and they said she abandoned the home,leaving her cats not true, (really) she is in the process of moving, boxes and bags where she had been packing. they broke the door in and without a call to see, they have our phone numbers, this is crazy they bully and harass the people they don't want to live there.
JA: Because real estate law varies from place to place, can you tell me what state this is in?
Customer: VA
JA: Are we your first resource? And has anything been filed in court?
Customer: We are fed up we will be in a couple of weeks, our attorney is out of town and we have 2 other pending cases with him.
JA: Anything else you want the lawyer to know before I connect you?
Customer: is this an Va. attorney
Submitted: 4 months ago.
Category: Legal
Expert:  Attorney2 replied 4 months ago.

Welcome and thank you for your question. I will be the Attorney that will be assisting you.

Expert:  Attorney2 replied 4 months ago.

The answer to the question depends on the governing documents for the HOA. The governing documents are a contract between the owners and the HOA. This does not sound like an emergency which would always allow entry to abate damages.

These are the laws in Virginia that govern Condominiums and HOA communities in the State of Virginia:

"Homeowner Associations are governed by a chain of governing documents and laws.

  • The Articles of Incorporation filed with the Secretary of State provide the legal basis of the association in the form of an Incorporated Non-Profit Corporation.
  • The recorded map or 'plat' defines each owner's title to property including the association's title to common areas.
  • The CCR's (Covenants, Conditions, and Restrictions) are publicly recorded deed restrictions.
  • The Bylaws are the rules for management and administration.
  • Resolutions are additional rules and regulations that the association may adopt.
  • Federal Laws also apply. Some but not all include the The Fair Housing Act, Internal Revenue Codes, the American Disabilities Act, the Virginia Graeme Baker Pool and Spa Safety Act , the FCC OTARD Rule (Over the Air Reception Devices - Satellite Dishes) and the Fair Debt Collection Practices Act.
  • Information regarding State Laws specific to common interest communities such as condominiums, cooperatives, and homeowner associations are provided below and in the FAQ section of the Resouce Center. In addition there are typically additional state laws that are not specific to Common Interest Communities which require compliance. Some examples include stormwater runoff, coastal development, elevator inspections for condos, and pool operations to name a few.
  • Local Ordinances, while not specific to homeowner associations, apply to building codes, animal control, abandoned cars, water restrictions, etc.
  • Additional legal regulations can exist in the form of case law; standards set by professional organizations such as accountants, engineers, architects, home inspectors, and real estate brokers; as well as lender requirements.

Considerations:

  • State laws affecting Common Interest Communities vary widely.
  • Bills affecting Common Interest Communities are frequently being introduced in state legislatures and may be in different stages of consideration, approval, or enactment.
  • It is not uncommon to find conflicts within or between governing documents such as the covenants and the bylaws. There may also be conflicts between governing documents and statutes. When this occurs, attorneys must often consider applying Rules of Intepretation.
  • Because of the wide variance in state laws, constant changes and possible conflicts in governing documents or statutes, it is strongly recommended that association boards and members seek legal counsel and especially with firms that have expertise or strong practice experience in the area of Common Interest Community law. A good starting point is to check the HOA-USA Partner Directory for your respective state.

Virginia State Laws:

State laws affecting Common Interest Communities are primarily contained in either the statutory laws of the Code of Virginia; or in the state agency rules in the Virginia Administrative Code. Searchable databases of the respective laws and rules can be accessed on the Virginia General Assembly website athttp://virginiageneralassembly.gov/ .

The Office of the Common Interest Community Ombudsman offers assistance and information to association members regarding the rights and processes available to them through their associations. Associations subject to the Ombudsman's jurisdiction include Property Owners' Associations, Condominium Associations, and Cooperative Associations. The Ombudsman is responsible for receiving "notices of adverse decision" from association members who allege an association governing body violated common interest community laws or regulations. The Office also receives reports of violations concerning timeshares. Questions may be directed to the Community Association Liaison, Department of Professional & Occupational Regulation (DPOR), P.O. Box 11066., Richmond, VA###-##-####(804)(###) ###-####More information may be found at http://www.dpor.virginia.gov/CIC-Ombudsman/

The Common Interest Community Board is separate and distinct from the Office of the Ombudsman. The Board is the regulatory body responsible for licensing association managers, certifying certain employees of licensed management firms, receiving annual reports filed by associations, and registering condominium and time-share projects registrations. More information is available on the Common Interest Community Board page. More information may be found athttp://www.dpor.virginia.gov/CIC-Ombudsman/

In addition, the State of Virginia requires that a Disclosure Packet Notice be provided to purchasers of lots in a Property Owners Association. Annual Reports and Forms must also be filed by condominium, property owner, cooperative, and time-share associations. Click here for more information:"

https://webapp.dpor.state.va.us/legal_main.htm

Do you have a copy of the condo documents that set out exactly when a condo can be entered and if the HOA MUST contact the owner first?

In the absence of anything in the governing documents to the contrary the HOA may enter in the following situations:

"If you own a home in a planned development, you might enjoy reduced maintenance obligations, as the homeowners’ association (HOA) likely takes care of common areas such as walkways and clubhouses. However, as an owner, you might not be happy knowing that representatives of your HOA could have the right to enter the interior of your home, as well.

To know whether and when someone from your HOA can enter your home, you must look to your development’s governing documents, as well as to any applicable state laws, as described below.

Where It Says What Entry Rights HOA Representatives Have

Most planned development’s actions are governed by a set of documents that go by names like “articles of incorporation,” “bylaws,” and “Declaration of Covenants, Conditions, Restrictions and Easements,” as well as any other rules and regulations adopted by the HOA. You must read these to see what entrance rights they give your HOA's representatives.

Additionally, you must look to your state’s laws, which might contain statutory limitations on HOAs’ entrance rights. If so, and there is a conflict with the rights in the governing documents, state law will control.

The right of your HOA to enter owners’ units might be limited, perhaps allowed only in emergency situations. Or they could be rather broad, such as if the HOA is allowed to inspect for rule violations or other reasons.

If you don’t already have a copy of your development’s governing documents, request one from your HOA. If you need help reviewing these, or finding information on your state’s statutes, an attorney in your area can assist.

An HOA’s Emergency Entrance Rights

Most developments (as well as most states' laws) provide that an HOA representative can enter an owner’s unit in emergency situations, or for health and safety reasons. Most owners will not object to this right, since it can help prevent a home from sustaining ongoing damage in the owner’s absence, and prevent damage to adjacent homes.

For example, if the HOA determines an absent owner’s home is flooding and leaking into the unit below, the HOA can immediately send someone to enter the unit to stop the water leak.

An HOA’s Right to Enter a Homeowner's Unit for Maintenance Purposes

Many HOAs also have the right to enter an owner’s unit to maintain common elements. This happens most often with condominium units, where the interior of an owner’s unit might contain systems serving the building as a whole (such as common plumbing or air ducts).

The HOA typically can send someone to enter an owner’s unit to perform common element inspections, maintenance, and repairs. Commonly an HOA must notify the owner a week or two prior to entering.

The Right to Enter to Inspect a Unit for Rule Violations

An HOA might also have the right to enter an owner’s unit to inspect for a violation of the development’s rules or regulations. Typically this is allowed only if the HOA has good reason to believe a violation is occurring. For example, if you live in a development that doesn’t allow pets, and an HOA representative hears a dog barking in your unit, the HOA might have the right to enter your unit to see if you are violating the pet prohibition.

Most HOAs are hesitant to enter an owner’s unit to inspect for rule violations, however. This is because it’s difficult to determine how much evidence an HOA needs to warrant an entrance. If the HOA enters a unit improperly, it risks liability for trespass, and might be in violation of the owner’s privacy rights.

Additionally, notice to the owner is typically required before any entrance to inspect for a rule violation. This makes the entrance right rather ineffective. (“Oops, we got a notice from the HOA, send the dog to Aunt Martha’s for the day!”)

Advance Notice Requirements

Both HOA governing documents and state statutes usually say something about what type of notice to the homeowner HOAs must give before sending a rep to enter their unit. State statutes commonly require that HOAs provide an owner with “reasonable” notice.

What’s considered “reasonable” depends on the situation. For example, prior notice of between three days and a week might be reasonable for an HOA wishing to enter an owner’s unit to perform periodic common area maintenance. On the other hand, if immediate entrance is necessary for health or safety reasons (such as if there is a fire in the unit), minimal or no notice is probably acceptable.

What If an HOA Rep Enters Illegally?

If you believe someone from your HOA entered (or is demanding to enter) your unit in violation of any law or the terms of the governing documents, you might have a legal case against the HOA for trespass (unauthorized access onto private property).

Additionally, the HOA might be liable for a breach of fiduciary duty if it acts in a discriminatory manner when entering owners’ homes (such as by entering only units whose owners the HOA president is feuding with).

An HOA has a fiduciary duty to act in the best interest of all the development’s homeowners, and to enforce all the rules and restrictions fairly. If the HOA is arbitrarily and discriminatorily entering units, it is breaching its fiduciary obligation to the owners by not acting in the community’s or individual homeowner’s best interests.

If you feel your HOA is committing an illegal or discriminatory entrance, first meet with the HOA’s board of directors to present your views. Bring a copy of the applicable state laws and governing documents. Sometimes an organized and well-presented argument can persuade the HOA to accede to your requests.

If the HOA does not respond, or does not agree with you, an experienced attorney in your can help review your situation and determine whether legal action against the HOA is warranted or advisable." http://www.nolo.com/legal-encyclopedia/when-you-must-allow-hoa-representative-enter-your-unit.html

Expert:  Attorney2 replied 4 months ago.

Do you have a copy of the governing documents so w can tell if the Board violated the rules and regulations and can be charged with trespass?

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