Can An Association Deny A Homeowner Access To Their Property

By Stanley Feldsott, Esq. and Andrew S. Parslow, Esq.

It is a well-known and somewhat overused analogy that rather than being a whole, property rights are a bundle of sticks. This is most often used to explain the division of rights between a property owner and the government; however, when the property in question is part of a homeowners association, the association also holds some of these allegorical sticks.

Perhaps, the most important property rights are the rights to access and exclude others from a property. There are several situations where a right can be exercised, such as condemnation, where the government can restrict a homeowner’s access to their property, but what about homeowners associations? Under extraordinary circumstances, an association is able to restrict an individual’s right to access their property.

This article will discuss various scenarios, when an association may consider whether they have a right to restrict the homeowner’s use of their property, and how best to handle such situations.

Failure to Pay Assessments

It goes without saying that an association would be unable to perform its obligations to the community without income from assessments. Due to the necessity of assessments, a homeowner becoming delinquent on payments is the most likely reason for an association to consider restricting an owner’s right to a property.

While residents have an ownership interest and a right in common area amenities, it is easy to restrict their access or use if such authority is provided for in the governing documents. However, this can be extremely difficult to enforce without cameras, fences, or other security measures that may not be worth the costs.

If the association wants to go further and remove the owner from their own property there are two manners of foreclosure available: judicial foreclosure and private sale. Regardless of the method, such an action is governed by California Civil Code § 5720, which requires that either the amount owed be at least $1,800 or the property be secured by a lien that is over 12 months delinquent.

In a judicial foreclosure, the association files a formal complaint in court with foreclosure as a cause of action, often alongside an action for open books and accounting. This approach has the benefit of a sale overseen by the court and resulting in good title, which makes it easier for future purchasers to get title insurance for the property. Additionally, notifying the delinquent homeowner of the filing for judicial foreclosure often leads to a dialogue where the parties are able to determine a payment plan.

Private sale of the property is a self-help method of foreclosing the property. Under this method, the association sells the property without the involvement of the court. While it tends to be more costly for the property owner to oppose, private sale has the downside of not yielding good title, which will likely require an action for quiet title in the future and may result in a lawsuit from the property’s former owner.

Of the two methods, judicial foreclosure is usually the better approach as it eliminates future title concerns and is less likely to spawn unexpected future lawsuits.

Dealing with Problematic Homeowners

In any community, there will inevitably be some homeowners who cause problems for their neighbors and/or the association. In particularly bad circumstances they not only frustrate but potentially endanger the safety of the community. Such homeowners can also raise concerns with the FHA and ADA. Two particularly relevant examples are hoarders and those that harass their neighbors.

Hoarding can lead to fires, pests, and the devaluation of properties in an association. The serious implications of this behavior have led to some associations prohibiting it in their governing documents. Dealing with hoarders has become increasingly difficult in recent years as the newest edition of the Diagnostic and Statistical Manual of Mental Disorders (DSM-5) classifies hoarding disorder as a mental illness rather than a potential symptom.

Due to this change, associations must be weary that their behavior is not discriminatory in violation of the FHA and ADA and seek to offer reasonable accommodations when necessary.

In an opposite vein, the FHA and ADA require that an association intervenes in certain instances of harassment to avoid liability. 24 CFR § 100.7 holds associations directly liable if they fail to prevent harassment based on membership in a protected class.

In such situations, the association’s actions are limited as they cannot simply ban a homeowner from the community. Generally, the best approach is to first contact the problematic resident and notify them of the consequences of their behavior as outlined in the governing documents. If such behavior continues, the association should impose fines and whichever penalties are permitted by the governing documents.

In extreme situations where the state of the hoarder’s property no longer appears safe or the harassment has become particularly severe, it is generally best to avoid self-help when possible. In cases where there is no immediate danger, the association should take time to ensure that their intervention is necessary and acquire adequate proof, then seek a restraining order.

If the association believes there is impending danger due to a homeowner’s conduct, they should contact their attorney and seek a temporary restraining order, until a more permanent solution can be attained.

Recommendations

Before attempting any action that may impact a homeowner’s rights, it is always advisable to first voice any and all concerns with the homeowner and seek an amicable resolution if possible.

Open communication can help avoid unnecessary conflict and better preserve a sense of community. If those informal communications do not resolve the issues, the association should then contact an attorney to review the reported conduct with respect to enforcement rights. An association’s options in such a situation may be limited by the particulars of its governing documents and pertinent local law.

Stanley Feldsott, Esq.

Andrew S. Parslow, Esq.

Stanley Feldsott, Esq., and Andrew S. Parslow, Esq., are attorneys with Feldsott & Lee, A Law Corporation that specializes in community association law. Feldsott has been in the industry for over 50 years and Parslow for one year.