Statutes and Documents Rule
“Typically, my number-one question to boards is: What do the governing documents allow for inspection?” says Kristen L. Rosenbeck, a partner at the Mulcahy Law Firm PC in Phoenix, which represents associations. “Most have some form of easement right for the association to enter a unit and inspect the property. It should say something like, ‘The association has a right of inspection (or a right of easement) to enter the property to confirm or review violations or common element issues.’
“There should also be some type of guideline for notice to enter the property so the association’s not trespassing,” adds Rosenbeck. “Typically the notice requirement is a ‘reasonable time.’ I recommend that reasonable notice is a week, and reasonable times are dates and times that work around the owner’s work schedule. I want to see those notice requirements in the CC&Rs. If they’re in a rule, that would give the association some argument to enter a unit, but that right could be challenged. If the owner says, ‘No way,’ we’ll review whether to still take the risk of entering or getting a court order.”
Statutes, which will trump your governing documents, may also apply, so check your state law. “The law on associations’ right to inspect is similar in Virginia and Washington, D.C.,” explains David Mercer, a partner at MercerTrigiani in Alexandria, Va., who represents more than 500 associations in both Virginia and Washington, D.C. “Access to units is more relevant in high-rise condos than in townhouse or homeowner associations, but there’s no distinction in the law. The association has the right to access a unit or home for a spectrum of needs. One is that the association needs to perform regular maintenance that necessitates its entering the unit. The opposite end of the spectrum would be an emergency, when it has to get in without providing notice.
“Also, in Virginia for both condos and HOAs, the association has the right to access a unit if there’s a request by the owner for the resale packet or disclosure certificate that’s required to sell the home,” adds Mercer. “To satisfactorily fill out that form, the association needs to perform an in-unit inspection to determine whether there are violations of the governing documents. So there are at least three general scenarios in which an association has a right to access. But absent an emergency, every entrance requires permission, and the reasonability of the notice required depends on the nature of the request. When health and safety are involved, notice could be a lot shorter. The circumstances are going to determine what’s reasonable.”
Massachusetts law is more restrictive. “In Massachusetts, an association can enter a unit only to make repairs to common facilities,” explains Robert Galvin, a partner at Davis, Malm & D’Agostine PC in Boston who specializes in representing condos and co-ops. “I wouldn’t want to advise a condo that in the absence of a real emergency you could just go into a unit to see if someone is smoking, has a pet, or is a hoarder. To check how many people are in a unit—I’d leave that alone because for years I’ve told associations to follow whatever’s allowed under their local zoning law. If you don’t, it could be construed that you’re violating people’s civil rights.”
What Happens in Real Life?
How do those rules play out in real life? “Let’s say the association has a rule that 80 percent of each unit’s floors have to be carpeted,” explains Mercer. “Does it have the authority generically to go into each unit without further facts or justification to regularly measure everyone’s compliance? No. If you change the facts and say a unit is the subject of a written complaint because of the severe level of noise, the association would have the right to schedule an inspection to determine if the owner has sufficient carpeting.
“If there are no facts to support the supposition that you’re in violation, an association can’t just say it would like to come in and make a check,” Mercer adds. “And I know of no state, set of documents, or law that allows you to go in without permission without notice except in an emergency.”
Rosenbeck says she’d “probably never” advise condo board members to access a unit for inspection without notice. “Some associations might want to take that risk saying their documents are clear,” she says. “But they’ll have to get a locksmith, who won’t want to take the liability, either. We also don’t know what’s on the other side of that door. If the owner has dogs, do we want to take that risk—in addition to having a trespass issue—compared to having a violation? Is a court going to find we had the right to enter? Maybe it’s possible if they’re entering a backyard, where there may be fewer potential security issues. But I’m probably never going to recommend the client enter the property.”
Can’t Go In. Now What?
If you can’t do a surprise visit, do you have any remedy for suspected violations? “The answer may very well be that associations can only pursue a court order,” says Mercer. “However, in my 35 years of watching this, I’ve seen lots of ways associations and management companies gain access. They’ll say, ‘We need to do our quarterly inspection on the condenser line in your unit’ or ‘We have a leak and don’t know if it’s coming from your unit. You may tell me it’s not, but we can’t rely on that.’
“A lot depends on what you believe the situation to be,” adds Mercer. “For example, with smoking, cockroaches, or concerns about owners’ safety and health, those are much greater issues than having a dog when they’re not supposed to. Let’s face it, if you haven’t heard the dog, and no one can say he’s ever seen the dog, what’s the basis for exercising imaginative ways to gain access? But if an owner is putting other residents at risk by smoking in his unit, that’s a whole separate set of issues, and that would require you to prioritize your creative ways to enter.”
That said, Mercer isn’t recommending an association break the law. “I’m very concerned about management just taking it upon itself to enter a unit without proper justification,” he says. “There’s a real balancing that has to go on.”
Will a court order help? Galvin says his clients have occasionally had to go to court to gain access to a unit, but never for violations. And you still have to prove your entry is necessary. “If you were to ask the court to give you permission to enter on the dog issue, you’d have to articulate evidence to justify probable cause that the owner is in breach of the documents,” says Mercer. “What is that cause?”
Fret not. Owners can’t get away with violations forever. “If you give an owner 24-48 hours notice, the owner might hide the dog, but sooner or later you’re going to catch the owner because he’s got to take the dog outside sometime,” says Galvin. “And you’ll find out if someone’s smoking because smoke migrates elsewhere.”