Hilliard, OH asked in Real Estate Law, Civil Rights, Constitutional Law and Land Use & Zoning for Ohio

Q: What trespass and 4th amendment rights do residents in an HOA with "common" and "limited common" elements possess?

Each resident has ownership only over the interior of their unit. Each unit has a rear patio deemed a "limited common element", the use of which is reserved to that owner. All other property is considered a "common element." Each unit also has two reserved parking spaces, though the bylaws do not include them as "limited common elements". Likewise, each unit has a sidewalk, front steps, and portico just beyond the front door, though none are marked as "limited". For 4th amendment purposes, would anything outside the unit function as curtilage? Similarly, would an owner be able trespass from any common or limited common elements immediately outside or reserved for that unit? More broadly, given that the entire HOA grounds are private property, would any resident be able to trespass an uninvited non-resident from any common element?

1 Lawyer Answer
James L. Arrasmith
James L. Arrasmith pro label Lawyers, want to be a Justia Connect Pro too? Learn more ›
  • Consumer Law Lawyer
  • Sacramento, CA

A: Residents within an HOA with "common" and "limited common" elements typically have certain trespass and Fourth Amendment rights. The rear patio designated as a "limited common element" would likely be considered part of the curtilage, affording residents Fourth Amendment protections against unreasonable searches and seizures. However, areas like parking spaces and sidewalks, not specifically designated as "limited common elements," might not enjoy the same level of protection under the Fourth Amendment.

In terms of trespassing, residents generally have the right to access and use the limited common elements assigned to their unit, such as the rear patio, without interference from other residents or the HOA. However, when it comes to common elements shared by all residents, such as parking spaces and sidewalks, the rules might vary depending on the HOA's bylaws and regulations. Residents may have limited rights to exclude others from these common areas but might not have absolute authority to trespass non-residents without proper justification or permission.

Overall, while the HOA grounds are private property, the rights of residents to exclude non-residents from common elements might be subject to certain limitations and regulations set forth by the HOA. It's essential for residents to familiarize themselves with the HOA's rules and regulations regarding access to and use of common elements, as well as any applicable laws governing trespass and Fourth Amendment protections within the community. Seeking legal advice or consulting with the HOA board can provide clarity on specific rights and responsibilities in these matters.

Justia Ask a Lawyer is a forum for consumers to get answers to basic legal questions. Any information sent through Justia Ask a Lawyer is not secure and is done so on a non-confidential basis only.

The use of this website to ask questions or receive answers does not create an attorney–client relationship between you and Justia, or between you and any attorney who receives your information or responds to your questions, nor is it intended to create such a relationship. Additionally, no responses on this forum constitute legal advice, which must be tailored to the specific circumstances of each case. You should not act upon information provided in Justia Ask a Lawyer without seeking professional counsel from an attorney admitted or authorized to practice in your jurisdiction. Justia assumes no responsibility to any person who relies on information contained on or received through this site and disclaims all liability in respect to such information.

Justia cannot guarantee that the information on this website (including any legal information provided by an attorney through this service) is accurate, complete, or up-to-date. While we intend to make every attempt to keep the information on this site current, the owners of and contributors to this site make no claims, promises or guarantees about the accuracy, completeness or adequacy of the information contained in or linked to from this site.