What is considered trespassing?

Started by EmilyS1 • 7 replies • 2450 views

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EmilyS1 (Virginia)
Posts: 3

Posted:

We have an HOA member who has put "decorative markers" (which are three sections of 4 board fence) on the private road easement as surveyed by the homeowners own surveyor. She put this up without the written approval of the HOA...do we have the right to go onto this easement to take it down if she doesn't comply with having to take it down. One of the markers is actually outside of the easement and is on the inside of the 25" from the center of the private road...just don't know if we can go on there and take it down or is that considered trespassing?

Thanks
FFHOA

BarbaraD6 (Florida)
Posts: 347

Posted:

Emily,

Your documents will tell you.

Barbara

RogerB (Colorado)
Posts: 5,067

Posted:

Emily, if the decorative markers are on private property I would consider it to be trespassing unless you get permission from the property owner to onto their property. If the decorative markers are in a common area owned by the association and the HOA member did not get permission then the Board can have them removed with or without the owner's permission.
(I would ask the owner to remove them or require the member to submit a request to seek approval to keep the markers in place if they are acceptable to a majority of the Board members).

BrianB (California)
Posts: 2,820

Posted:

IANAL
The above advice is good. listen to it.

In general, a granted easement gives the grantee some limited rights, and access is usually one of them. However, anything beyond that gets to be a sticky wicket. For instance, if you entered the easement (legal) to do something for the association spelled out in the easement grant, you would not be trespassing. If you simply decided you wanted to sleep there, you might be guilty of trespass (maybe).

However, if you removed items from the easement, you would likely NOT be found guilty of trespass (you have a right to access via easement), but you COULD be found guilty of vandalism, theft, etc., if the grantor prosecuted you. Your right to entry does not necessarily equate to right to alter property, etc..

so, ask nicely and follow your rules before you do anything hasty.

JeffP6 (Florida)
Posts: 91

Posted:

In general from our lawyers they have said dont set foot on a homeowners property to REMOVE anything. It's one thing to have our landscape crew go on to mow / weed eat (maintain) properties that have been foreclosed or in general violation.. It is another entirely to go on and remove something.

MaryA1 (Arizona)
Posts: 7,043

Posted:

Jeff,

Even if the home has been foreclosed or the member is not maintaining the landscaping, the HOA should NOT set foot on their property unless they have been notified and have given their permission.

JeffP6 (Florida)
Posts: 91

Posted:

Mary - all that is required here is 14 days notification - so sending someone a letter saying you have 14 days to rectify your violation or we are sending our Landscape crew onto your property to bring it into compliance satisfies that.

Mind you we would only send a crew onto a property to maintain - like in the insance of a foreclosed property, we would not (at the direction of our attorney) remove anything from a property.

TimB4 (Tennessee)
Posts: 21,047

Posted:

Emily,

I live in Fairfax County and our lawyer recommended against actually entering the property even though our governing documents say we can. They said it can become really expensive to fight a trespassing issue if you weren't entering the property for safety reasons. Therefore, we just don't do it.

I would recommend that you stick with letters, fining and legal action (if necessary) on the signs. I p;personally, believe it is silly to open up an issue of possible trespassing for failure to request approval when there are other avenues for enforcement available.

Tim

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