Knowing the LawWhether maintenance or repair visits are wanted or not, they are protected by the law. “Florida statutes grant the association the irrevocable right of access to the condominium unit during reasonable hours, when necessary for the maintenance, repair or replacement of any common elements or any portion of the unit to be maintained pursuant to the declaration,” says Attorney Russell Robbins, managing partner with the law firm of Mirza Basulto & Robbins, LLP in Coral Springs. “In addition, the association has certain rights to enter and secure abandoned condominium units.”
Attorney Ben Solomon, a partner at The Association Law Group in Miami, agrees. “As long as proper notice has been provided, it does not appear that the owner would be required to be present at the time the unit is entered and there is an exception to even providing such notice in the ‘case of an emergency,’” he says. “In addition to such statutory rights, there are also frequently express rights and provisions to access units memorialized in the recorded declarations of most condominiums.”
The regulations for gaining entry to a unit also will be spelled out in the condominium’s governing documents, providing another source of guidance for staff and residents.
While the law and governing documents may detail the cut-and-dry questions pertaining to unit access, ensuring an open line of communication with unit owners remains of vital importance. “Prior to entry into a condominium unit, the association’s board or manager should use its best effort to notify the unit owner of the need to gain entry into the condominium unit,” says Robbins. “If the association knows well in advance of the need for access, it should send a request via certified mail to ensure that it has taken every effort to notify the unit owner prior to entering the condominium unit.”
Some situations preclude the ability to notify residents in advance, says Robbins. “In an emergency situation—smoke billowing out of a window or water flowing out from under a door, the association should immediately get entry to the condominium unit to prevent further damage to other units and the association’s common elements.”
Often, it can come down to a matter of judgment. “If someone on an upper floor has a water heater burst and it’s running down to other properties, the staff person may not be able to give the resident notice,” says says Attorney Michael Chapnick, a shareholder attorney at the law firm of Siegfried Rivera Hyman Lerner De La Torre Mars & Sobel, P.A. in West Palm Beach. “Associations and board members have to use their common sense.”
Taking precautions when entering in those emergency situations can make all the difference when it comes to avoiding trouble, including potential accusations of impropriety. Chapnick says staff or board members are “presumably going in to prevent damage to that unit, other units or common areas. Potentially, could the unit owner proclaim that they had the Hope Diamond on the kitchen counter and now it’s not there? Yes, that could happen.”
To avoid even the hint of impropriety, Chapnick recommends that staff “film their entry into the unit and their activities while there. Also, don’t go in without a neutral party—an off-duty police officer or second board member so that no one is going in alone.”
There are liability concerns anytime professionals or board members enter a unit without the owner present. “If the party entering the unit causes damage due to their own negligence or something is stolen from the property during such entry, there could be a valid claim of liability against the association,” says Solomon.
The parameters of such circumstances are typically found in the “provisions contained in most declarations protecting associations from certain claims including indemnity provisions, but the same may not fully protect the association in extreme cases, (for example if) an entering party is negligent or steals something,” says Solomon.
The right blend of insurance coverage can protect condos from much of the risk inherent in these situations. “Having general liability insurance, property and casualty insurance, and director and officer liability insurance should adequately protect associations from most claims relating to these types of issues,” says Solomon.
Thankfully, the need to enter a unit without the owner present tends to happen less often than one might suspect. “There are very few situations where a property’s staff or board member would need to enter a unit without the owner present,” says David Cohen, vice president of AKAM On-Site, a management company in Dania Beach. “We do encounter situations during extreme weather emergencies where an absentee owner will request us to enter their unit to secure the premises. And even then, we require written permission before entering.”
When to Stay OutAs important as it is to know when building staff or management can enter a unit, it is equally as important to know when they may not. “They need a legitimate legal or business purpose,” says Solomon. “For example, if there is good reason to believe a leak is emanating from the inside of a unit, that would be a customary and reasonable basis to access the same. However, entering a unit to see, for example, whether an owner is living with another occupant would generally not be advisable.”
One way to avoid the potential difficulties that arise as a result of entering an apartment without the owner is to provide training to management staff to ensure they understand when it is appropriate to do so. At AKAM On-Site, Cohen says their company’s policies “strictly forbid staff to enter a resident’s unit for any reason unless it seems to be an emergency. It is up to the staff member to use their best judgment before entering the unit as they will be responsible for their actions. At regularly scheduled seminars, we dive into the situations that would be considered an emergency and advise our team on best practices in these situations.”
Cohen also warns against another scenario that could result in trouble. “AKAM forbids our employees to solicit or be solicited for ‘side jobs’ by residents, eliminating many possible situations where a property’s staff may be in an owner’s unit unattended,” he says.
The Owner’s ResponsibilityWhile managers and board members may face the majority of liability in these situations of unsupervised access, unit owners also may run into a headache or two should they prove inflexible in allowing that access, especially when it comes to emergencies. There are times when the governing documents may have spelled out specific scenarios when access is necessary, including regularly scheduled maintenance. For example, “Some associations might have a bulk agreement for pest control,” says Chapnick. “It will all be spelled out [in the documents] that there will be ‘x’ days each month when the pest control staff require access and if the owner is not there, the manager will go in.”
Should a unit owner refuse to allow an association access to carry out its statutory or contractual duties, says Chapnick, the association may be forced to file for arbitration or file lawsuits for the access it needs. If, for example, a whole floor became infested with vermin because one resident refused to allow access for that pest control while they were away or at work, then that resident could become liable for damage caused.
In order to keep everyone safe and risk free, “The association should engage the owner and explain the need for entry,” says Robbins. “If possible, the board can request that a representative of the owner be present during entry—for non-emergency purposes—to ensure that someone is there to explain to the owner the condition of the property and the need for the repair or replacement.”
Communication: Always the Best SolutionAs Robbins suggests, communication can make a significant difference for both unit owners and association staff and board members. This is of special importance for residents who do not live in their apartments full time. “The association should remind its owners that if the unit owner is going to be absent for a prolonged period of time, it is imperative that they designate a representative to visit the unit during their absence for the purpose of inspecting the unit,” says Robbins.
Certainly problems can occur in an owner’s absence. “It is not uncommon for a snow bird to return to their unit and find the interior damaged by mold that occurred during their absence,” Robbins says. “That easily could have been avoided had a trusted friend inspected the unit during their absence. Having accurate contact information, mail, email and phone numbers for the residents is imperative to notifying owners prior to gaining entry to their unit.”
Even before unit owners move into their buildings or communities, those owners should be made aware of the policies and protocols for admittance into units. “It is important that the property’s bylaws and rules and regulations are communicated to all new owners when units are purchased and presented to anyone renting the owner’s unit,” says Cohen.
The UnthinkableWhat if an owner has played by the rules but suspects that a staff or board members has entered their unit inappropriately and without adequate reason? “If they have a property manager, speak to that person first and find out if they know who was in the unit and why they were there,” says Chapnick.
“The unit owner,” adds Cohen, “should report the incident in question to their management executive, unless the complaint refers to their management executive in which case they should contact their management firm’s corporate office and ask for the appropriate executive to discuss their situation. The management executive or management firm will then investigate the claim thoroughly and report their findings back to the resident.”
If the unit owner has evidence and is confident that wrong-doing did occur, they can turn to law enforcement. “If no satisfaction is found (in working with the board or management), then calling the local police is appropriate,” says Chapnick.
Russell agrees. “Absent emergency circumstances for entry to the condominium unit, unlawful entry may be trespassing and could be reported to the police or sheriff’s department.”
Certainly one of the best ways to avoid trouble is for everyone to agree on a policy that is in keeping with state law and ensuring that all unit owners understand the need for unit access, including their own responsibility for maintenance and safety for the community as a whole. No one likes the idea of someone entering their residence unattended, but on the other hand, if explained properly, it’s also possible to see emergency or maintenance-based entry as a safety net, a backup for when troubles arise. If everyone works together for the well-being of the community and unit owners as a whole, then issues can be avoided and people can feel confident that their unit and their interests are being protected.
Liz Lent is a freelance writer and a frequent contributor to The South Florida Cooperator.