Unfortunately, trying to limit access to only locals can be frustrating, not just for would-be visitors on Halloween night, but also for people who live within a neighborhood and who are told they can’t invite in outside guests on the big day.
For example, say Harrison’s HOA sent out a notice of a new policy prohibiting non-resident children from trick-or-treating on Halloween night. The HOA says it will have volunteers on the street to confirm trick-or-treaters live in the neighborhood. They’ve warned that strangers aren’t allowed and residents shouldn’t bring guests over to collect candy.
Harrison now wonders whether this is legal — and whether he must tell his sister’s kids they can no longer come over and enjoy the festivities in his neighborhood, despite (or perhaps because of) the cool decorations and full-size candy bars many in the area hand out.
Can an HOA stop outside trick-or-treaters from coming in?
Although state laws can vary slightly, experts agree that the HOA may be on shaky ground here, as banning “outsiders” may actually be possible only in very limited circumstances, if at all.
“Generally, an association with public streets cannot ban outsiders from entering,” Ronnie Bronstein, an attorney and founder of Mansfield & Bronstein told Moneywise. “If the streets are private and treated as common elements of the community, the association is given authority to adopt reasonable rules and regulations governing the common areas. That may include some limitations on trick-or-treating.”
Allison L. Hertz, an attorney at Becker and board-certified expert in Florida Bar in Condominium & Planned Development Law, agreed, telling Moneywise, that boards can generally make “reasonable rules” concerning common areas and guest access.
“But whether banning guests on Halloween is a reasonable rule is debatable,” she added. “It could also discriminate against families with children.”
Hertz explained that, “if the HOA is non-gated and the roads are public, the HOA likely can’t just restrict access to public roads for some children.” The reason for that is simple. Those roads don’t belong to the HOA, so the HOA has no authority over them.
“An HOA has no more power to decide who walks down a public street than any individual homeowner does,” Raul Gastesi, founding Partner of Gastesi Lopez Mestre & Cobiella, told Moneywise. “A child from the subdivision next door has the same right to be on that sidewalk as a child who lives on the block.”
So, if Harrison is unhappy with the HOA’s proposed “ban,” his best bet may be to see if the HOA or the county owns the roads. He can check recorded plat maps, read the governing HOA documents, contact the county or look at the road signs to find out who has control.
