Q: What are the responsibilities, options and remedies of a condominium association when a unit owner obstructs or refuses entry to the unit for the purpose of replacing recalled and non-operative fire sprinkler heads?
- J.D., via email
A: You might be surprised at how often the issue of association rights of access to units comes up.
Here is what the law says about it. According to Section 718.111(5), Florida Statutes, a condo association has the “irrevocable right of access to each unit during reasonable hours, when necessary for the maintenance, repair or replacement of any common elements or of any portion of a unit to be maintained by the association pursuant to the declaration or as necessary to prevent damage to the common elements or to a unit or units.”
Pretty broad, huh?
The issue you describe is a serious one. Life safety issues, such as the fire sprinkler system not being operational, have to be addressed immediately. Why an owner would deny access to a unit for this type of repair or replacement floors me, but I have seen it happen.
I was not clear if you were asking the question prospectively, or if an issue has already arisen. I hope the former.
Does your association have regulations about entering units? It should. The association should require keys to the units. Although this might be done by board rule, it is better practice to have that right written right into the declaration of condominium. Having a key, especially in the case of a true emergency, certainly beats having to hire a locksmith (who may be reluctant to do it) or beating down the door.
But heavy is the head that wears the crown, and the security of those keys is paramount.
A condo association has the obligation to inform owners of why and when it will access individual units. It perhaps goes without saying that entry must be for a proper purpose as outlined in the statute and the condominium documents. No board member, employee or contractor should enter alone. At least two people are needed, one of whom is duly authorized to do so by the board. Unless, of course, the association wants to mount a defense over allegations that Great Aunt Hattie’s pearl necklace has turned up missing.
Most people will understand the benefit and necessity for the association to enter their units for specified purposes. Occasionally, though, this does not happen. So what should the board do with a recalcitrant owner?
I am not a big fan of self-help remedies. Now, if the unit is being flooded as a result of an unmonitored leak, I would probably advise the association to go in, key or no key. If the situation is less than a “true” emergency (and that has to be decided on a case-by-case basis), I would try to explain the purpose and need for the entry. Failing that, I would consult the association attorney, who may advise filing an arbitration petition or maybe an emergency injunction.
I just don’t like the idea of sending an association representative into a unit after the owner has vehemently objected, absent a formal determination that the association has the right to do it. Nobody wants to be shot replacing a fire sprinkler head. Matter of fact, who wants to risk being shot at all, right?
I have run into this problem on many occasions in dealing with owners or tenants who do not want to provide unit access for the purpose of pest control. They claim that the insecticides will harm them or their family members, including pets. Sometimes, it helps to educate the residents, and, in a cooperative spirit, find alternatives that allay concerns. If that fails, state-controlled arbitration is probably the best route. An arbitration verdict in favor of the association can be enforced in court. The prevailing party can ask for and receive the recovery of its attorneys’ fees and costs.
I am not discounting that some residents may have acute allergies or even a condition, such as agoraphobia, that make the thought of “intruders” in their home seem dangerous, regardless of the association’s purpose. However, in a seminal appellate court case, the holding summed it up for me:
“Every man may justly consider his home his castle and himself as the king thereof; nonetheless, his sovereign fiat to use his castle as he pleases must yield, at least in degree, where ownership is in common or cooperation with others. The benefits of condominium living and ownership demand no less...”
OK, I admit “sovereign” and “fiat” may not be part of everyone’s lexicon. So, let me put it another way. I receive so many letters to this column from unhappy owners that essentially tell me that the board has done or plans to do “XY&Z.” Then, the outraged question is “Can they do that?!” The answer is, it depends on exactly what “XY&Z” is and how it applies to the community in question.
People who choose to live in a community association do surrender certain personal freedoms in exchange for the benefits they receive. Usually, the trade is worth it.
Nobody promised we would always get our way, from decisions about what speed to drive or whether to immunize our children. No one purchasing in a community is promised a rose garden, at least figuratively speaking (although they literally could be promised one.)
A friend sent me a quote, attributed to Johnny Carson, that I found gut-bustingly funny: “If life were fair, Elvis would be alive today and all the impersonators would be dead.”
Tamela Eady is a Florida Bar board-certified real estate attorney with 25 years’ experience. The subjects discussed in her columns are not intended as specific legal advice to anyone and are subject to principles that may change from time to time. Questions may be modified for clarity or for brevity. Email questions for possible inclusion in a future column to tke@eadylaw.com.
