Are they trespassing? If yes, what can we do?
2 attorney answers
It may be that although the bylaws used the word "tresspasser" it does not, automatically invoke state law or local ordinance of trespass. The dog owners seem to be arguing their use created a "license" by their extended practice of allowing their dogs to the water. However, if the association can pass rules, and the rule is now changed to be "no dogs" at the beach, that would seem to carry the day and they will have to take the dogs elsewhere to play in the water. That's my opinion of it
Perhaps the dog owners who live in the community are arguing that the HOA has waived its right to enforce the covenant due to lack of enforcement or laches. That is an issue that could be researched by legal counsel. However, the bylaws or deed may have language stating that non-enforcement should not be treated as a waiver. The deed or bylaws may also state that each lot owner has a right to enforce the deed provisions or covenant. It may be a civil trespass if lot owners enter the beach with dogs but in Maryland it cannot be a criminal trespass unless the property is posted or notice is otherwise given. The bylaws, deed and minutes likely suffice as notice; however, law enforcement officers will probably be reluctant to arrest or cite a lot owner for a misdemeanor they either do not witness or are otherwise using a common area in mere violation of a covenant or rule. Advertise the rule or covenant, make additional rules and engage legal counsel to litigate if necessary. Does the HOA have the power to levy fines that can be collected as a lien on the Owners' properties? If so, that is an excellent enforcement tool.