Right of Entry
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RIGHT OF ENTRY

Under California law, anyone who enters another’s premises without prior notice, permission, or justification, and uses force or violence to enter another’s premises, except in cases and in the manner allowed by law, is guilty of a misdemeanor (Penal Code §602.5; Penal Code §418).

Right of Entry in CC&Rs. In general, the authority for homeowners’ associations to enter a member’s unit arises under the association’s CC&Rs. Typically, CC&Rs provide that the Board or its agents may enter the unit under certain circumstances. The Board’s “agent” is inclusive of Board members, management, maintenance, or other persons acting at the Board’s direction. The purposes of entry are commonly limited to (i) making emergency repairs, (ii) performing necessary maintenance or repairs to portions of the Common Area, (iii) abating any nuisance, or any dangerous, unauthorized, prohibited, or unlawful activity being conducted or maintained in such Unit, (iv) protecting the property rights and welfare of the other Owners or (v) for any other purpose reasonably related to the performance by the Association of its responsibilities under the terms of the CC&Rs. The CC&Rs provision also usually requires reasonable notice prior to entry, except in emergencies, and also provides that any damages to a Unit or to the furniture, furnishings, decorations or improvements contained therein resulting from the exercise of such right of entry shall be repaired by the association.

Caselaw is scant on the specific issue of the right of entry in an emergency as most owners will not object to this right because it can help prevent a home from sustaining ongoing damage in the owner’s absence and prevent damage to other nearby homes. For example, if the association determines an absent owner’s unit is flooding and leaking into the units below, it can immediately send someone to enter the unit to stop the water leak and mitigate damage to the absent owner’s own unit as well as those unit affected by the flood.

Right of Entry by Statute for Emergencies. Absent authority from the CC&Rs, homeowners’ associations’ right to access units arises from Civil Code 1954, which governs the rights of landlords to enter a unit in emergencies, and from common law torts principles, which apply to anyone, i.e., neighbors, passerbys, and not just the association and/or its agents.

            A.  HOAs as Landlords. Homeowners’ associations have been held to the standard of care of landlords relating to safety issues. (Francis T. vs. Village Green (1986) 42 Cal.3d 490; see also, White v. Cox (1971) 17 Cal.App.3d 824 and O’Connor v. Village Green Owners Association (1983) 33 Cal.3d 790.) Constitutional and common law protections do not lose their potency merely because familiar functions are organized into more complex or privatized arrangements. (See, e.g., Prune Yard Shopping Center v. Robins (1980) 447 U.S. 74; Shelley v. Kraemer (1948) 334 U.S. 1; Marsh v. Alabama (1946) 326 U.S. 501.) Traditional tort principles impose on landlords, no less than on associations that function as a landlord in maintaining the common areas of a large condominium complex, a duty to exercise due care for the residents’ safety in those areas under their control. (Id.)

Civil Code §1954(a) provides circumstances under which a landlord may enter a dwelling unit, including (i) in case of emergency; (ii) to make necessary or agreed repairs, decorations, alterations or improvements, supply necessary or agreed services, or exhibit the dwelling unit to prospective or actual purchasers, mortgagees, tenants, workers, or contractors or to make an inspection prior to tenant vacating unit; (iii) when the tenant has abandoned or surrendered the premises; (iv) pursuant to court order; or (v) for purposes of arranging water submeter services.

Entry must be made during normal business hours except in cases of emergency, unless the tenant has consented to otherwise. (Civil Code §1954(b).) Similar to CC&Rs provisions, reasonable notice is required prior to entry. (Id. at (d).) However, notice is not required to (1) respond to an emergency; (2) if the tenant is present and consents to the entry at the time of entry; and (3) after the tenant has abandoned or surrendered the unit. (Id. at (e).)

There are few situations that the law considers a real emergency, therefore associations should be very careful when entering a unit using this justification. Generally, any unexpected or sudden situation where an event is causing damage and will continue to cause damage if not dealt with immediately can be considered an emergency. (Prosser & Keeton, Torts (5th ed. 1984) § 33, pp. 196–197.) Recognized emergency situations include incidents/events that threaten life or property such as flood, fire and extreme weather. (Surocco v. Geary (1853) 3 C. 69, 73; Restatement (Second) of Torts §196 (1965).)

The court found a property manager’s entry into a tenant’s unit out of concern for the safety of the property or his other tenants constitutes an emergency allowing entry without the tenant’s knowledge and permission, where the tenant was arrested unexpectedly and left the unit with a reasonable possibility of a lighted stove. The property manager may properly enter the unit for the limited purpose of dealing with the emergency. (People v. Plane (1969) 274 CA2d 1.) In comparison, an on-site manager’s entry of a tenant’s mobile home where she and her dogs were gone, her truck was still in the driveway and her backdoor was unlocked did not constitute an emergency and it was unreasonable for the manager to believe one existed. (Salisbury v. Hickman (2013) 974 F. Supp.2d 1282, 1295.)

            B.  Defenses to Trespass – Privileged Entries. Whether you’re a Board member, or an agent acting at the Board’s direction, or just a regular Joe/neighbor, your entry into another’s unit in an emergency may be protected under certain privileged circumstances.

“[I]t has long [been] recognized that ‘[n]ecessity often justifies an action which would otherwise constitute a trespass, as where the act is prompted by the motive of preserving life or property and reasonably appears to the actor to be necessary for that purpose.’ (People v. Ray (1999) 21 Cal.4th 464, 473 [internal citations omitted].) Recognized privileged entries that does not require prior notice or consent include, but are not limited to, entry and destruction of property in emergencies, for reasons of public necessity, to avert disaster such as fire or flood; (Surocco v. Geary, supra 21 Cal.4th at 73; Restatement (Second) of Torts §196 (1965)) entry for private necessity to protect person or property from serious harm; (Restatement (Second) of Torts §197 (1965)) and entry to care for a confined domestic animal to give it necessary food and water. (Penal Code §597e.)

Specifically, with respect to the right of entry for the protection of a person or property in an emergency, Restatement (Second) of Torts §197 provides:

(1) One is privileged to enter or remain on land in the possession of another if it is or reasonably appears to be necessary to prevent serious harm to (a) the actor, or his land or chattels, or (b) the other or a third person, or the land or chattels of either, unless the actor knows or has reason to know that the one for whose benefit he enters is unwilling that he shall take such action.

(2) Where the entry is for the benefit of the actor or a third person, he is subject to liability for any harm done in the exercise of the privilege stated in Subsection (1) to any legally protected interest of the possessor in the land or connected with it, except where the threat of harm to avert which the entry is made is caused by the tortious conduct or contributory negligence of the possessor.( As cited in People v. Ray, supra, 21 Cal.4th at p. 474.)

The comments to the Restatement Section make clear that the privilege exists only in an emergency where the actor enters land for the purposes of protecting himself, the owner of the land or a third person, or the land or property of any such persons. The actor is subject to liability for harm done in the unreasonable exercise of the privilege. “Reasonableness” is determined by a risk-benefit analysis – weighing the probable advantage to the actor to be expected from the entry against the probable detriment to the owners of the land or other persons properly upon it. The actor's entry to avoid death or serious bodily harm would be unreasonable if it would involve a more serious or even an equal risk of harm to the owner of the land or other lawful occupants. (Restatement (Second) of Torts § 197 (1965), Comment (c).)

Where the actor enters for the protection of the owner of the land or of a third person or the property of either, the privilege is available only where the actor believes that the person for whose benefit the entry is made is willing that the actor shall take such protective action. If, therefore, the actor knows that such person is unwilling or does not believe that he is willing, the actor has no such privilege. The mere fact that the owner of the land is unwilling does not destroy the privilege to act for the protection of the interest of a third person. (Id. at Comment (e).)

In application, this means, where an owner, whether or not a Board member, enters another’s unit in an emergency, i.e., unit on fire, in an attempt to stop the damage from further spreading into his own unit or other units, that owner is not liable for trespass. Importantly, however, the actor cannot gain entry even in an emergency, if the person who the actor is trying to protect refuses such protective action. For example:

  • A’s house is on fire. B is about to enter the house to rescue A’s dog. A forbids B to do so, but B enters anyway. B’s entry is a trespass. (See, for example and by analogy, Mohr v. Williams, 95 Minn. 261, 104 N.W. 12, 1 L.R.A.N.S. 439, 111 Am.St.Rep. 462, 5 Ann.Cas. 303 (1905).)
  • A, despite B’s previously voiced objection, enters B’s burning house to rescue a third person, C, who is in danger of being trapped in the burning house. A’s entry is privileged, and he is not subject to liability for trespass. (Example based on Proctor v. Adams, 113 Mass. 376 (1873).)
  • A, passing B’s dwelling, hears from it screams indicating that some person inside is in distress. A is privileged to enter the dwelling for the purpose of rendering assistance. (Id. at Comment (e); example based on People v. Roberts, 47 Cal.2d 374, 303 P.2d 721 (1956).)

The actor can use reasonable force to gain entry. Whether the entry is for the protection of the actor or his belongings, or for the protection of the possessor or of a third person, or the belongings of either of them, the privilege carries with it the subsidiary privilege to use reasonable force to the person of the possessor or any third person. Meaning, the actor is privileged to break and enter, or to destroy a fence or other enclosure, including a dwelling, in so far as such acts are reasonably necessary to accomplish the privilege. (Id. at Comment (g).)

Where the entry is for the benefit of the owner of the land, the privilege is a complete one. Whereas if the entry is for the purpose of protecting a legally protected interest of the actor or a third person, the privilege to enter is an incomplete one. Meaning, although the owner of the land is not privileged to resist the entry, the actor is responsible for all harm to the owner or to his interest in the land which the actor may cause, whether intentionally, negligently, or accidentally, while exercising his privilege. The only exception to this rule is where the threatened danger to avert which the actor enters results from the tortious conduct or contributory negligence of the owner of the land. (Id. at Comment (j).) For example:

  • A enters B’s burning home to save B’s dogs from the flames. A’s entry on the land is privileged and A is not liable for reasonably necessary harm (i.e., breaking the door to enter the burning home if that was necessary to gain entry). Compared to,
  • While A is canoeing on a navigable river, he is suddenly overtaken by a violent storm. To save himself and his canoe from destruction, A lands on B's dock and pulls his canoe up on the dock. In getting on B's dock or in placing his canoe there, A damages the dock. Although A's entry is privileged, he is liable to B for the damages to the dock. (Example based on Vincent v. Lake Erie Transportation Co., 109 Minn. 456, 124 N.W. 221, 27 L.R.A.N.S. 312 (1910), as cited in Id. at Comment (j).)

The defenses to trespass under common law torts principles is fact specific. Rather than risking liability with each different scenario, an associations’ right of entry should be specified in its governing documents.

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