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Condo Law – Decision on Access and Maintenance Association’s Right to Enter Unit.

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Cuevas, Garcia & Torres, P.A.

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Andrew Cuevas, Esq. - President

e-mail: acuevas@cuevaslaw.com

Tel: (305) 461-9500

Fax: (305) 448-7300

Introduction

Mr. Andrew Cuevas, Esq., is the President of Cuevas, Garcia & Torres, P.A., and Vantage Property Title Company.  Cuevas, Garcia & Torres, P.A. provides legal services in the areas of Community Association Law, Real Estate law, and Business Immigration, including title insurance services through Vantage Property Title Company.  If you have any questions regarding this article or any other questions, you can contact Mr. Cuevas at (305) 461-9500 or at acuevas@cuevaslaw.com .  If you are interested in reading previous newsletters, please visit www.cuevaslaw.com, select the icon for Newsletters , and then choose the area of law you are interested in.

What is a condominium association’s statutory and contractual right to access to a unit?

The opinion in Small v. Devon Cd’m. B Ass’n. Inc. (Fla. 4th DCA, April 2, 2014), addresses that a condominium association’s statutory and contractual right to access to a unit to perform preventative pest control spraying. The opinion is grounded in the decision of Hollywood Towers v. Hampton, 40 So. 3d 784, 787 (Fla. 4th DCA 2010) finding that for access to a unit, the effort must be (i) within the Condominium Association’s authority; and, (ii) reasonable.  “A “claim” of necessity is insufficient.”  “The association must establish that its actions are necessary.”In Hampton, the trial courts decision was in favor of the association allowing to access a unit owner’s apartment to repair exterior balconies. The appeals court remanded the case to the trial court to determine whether the association acted reasonably in accessing the unit owner’s apartment. Id. at 788. As a result of the years 2005 through 2009 when there was no evidence of pest control problems, there was a genuine issue of material fact as to the necessity of entry.  The owner’s complaints of health risks also created a genuine issue of material fact regarding the reasonableness of the request.  Therefore, summary judgment in favor of the association was reversed.

The 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. Despite the reversal of the Judgment, the Court affirmed the contempt order and attorney’s fees awarded the Association based on the contempt order issued against the owner for failure to follow provided court order (before filing an appeal).  In this regard, the owner only appealed the enforcement order, not the contempt finding; thus, the owner waived a challenge on the merits of the contempt finding.

This article is solely a partial explanation of all the issues related to the topic of this newsletter, and is not to be considered legal advice.  The association should consult with its legal counsel to obtain explanations of all issues addressed herein and determine what collection procedures will most benefit your association.

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