Restricting access to common area roads: a “high risk” activity for Washington HOAs

When owners are delinquent in paying assessments, an Association may wish to penalize the owner and provide an incentive to pay by restricting that owner’s access to common areas. A Washington HOA probably can restrict access to common areas such a pool or cabana, if its governing documents specifically authorize such an act. But can a Washington HOA deactivate a delinquent owner’s entry gate remote control so the owner cannot use the common area roads to get to their home? The Homeowners' Association Act gives an Association the power to regulate the use of common areas, as well as to impose fines for delinquent assessments. (See RCW 64.38.020(6), (11).) However, the HOA Act does not specifically authorize an Association to restrict access to common areas to owners who are delinquent on their assessments. There is currently no Washington case specifically discussing whether access to common area roads can be taken away from an owner for failure to pay assessments. In some other states, such as Florida and California, statutes allow an Association to restrict access to common area facilities, but not to restrict ingress and egress to and from an owner’s parcel. See, for instance, Fla. Stat. § 720.305(2)(a), or CA Civil Code § 1361.5. It is our opinion that a Washington HOA would expose itself to liability for deactivating gate keys, especially if the gate controls the only access to the individual’s home (for instance, if there are no other roads). This is because the HOA Act (RCW 64.38) does not specifically authorize it, and because under general Washington law, a gate cannot be placed across an easement if that gate unreasonably interferes with the parcel owner’s use of the land. Depending on the circumstances, this principle probably applies to a parcel located within an HOA. If the gate in question blocks the only way to access a lot, then the owner cannot use the property at all. So, if your board is considering restricting access to common area roads to create an "incentive" for delinquent owners to pay, you should think twice and consult with your association attorney for advice on this option, as well as alternative ways to encourage delinquent owners to pay. If you have any questions we can answer, please feel free to leave a comment or contact us directly. We look forward to continuing this conversation with you in our future posts!