Condominium Law – Accessing Units For Repairs following Hurricane Irma

October 10, 2017

Introduction

Mr. Jose H. Garcia, Esq., is a Shareholder/Attorney at Cuevas, Garcia & Torres, P.A., and Vice-President of Vantage Property Title Company, Inc. Cuevas, Garcia & Torres, P.A., provides legal services in the areas of Community Association Law, Corporate Law, Real Estate Law, and Business Immigration, including, without limitation, title insurance services through Vantage Property Title Company, Inc. If you have any questions regarding this article or any other questions, you may contact Mr. Garcia at (305) 461-9500 or via e-mail at [email protected]. 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.

Accessing Units for Repairs following Hurricane Irma

Following Hurricane Irma’s impact throughout Florida, it is likely that several associations will need to access units to repair or replace common elements or limited common elements, sometimes even on an emergency basis. Even though the majority of owners will cooperate and allow the Association or its agents access to perform necessary repairs, some owners may be more difficult and even refuse to allow the Association access into their units to perform repairs.

Florida Statute §718.111(5)(a) states, “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.” It is well established that Florida law specifically provides that condominium associations have the irrevocable right of access to each unit during reasonable hours when it is necessary for the maintenance, repair or replacement of the common elements, limited common elements, or any portion of the unit that the association is required to maintain, as well as to prevent damage to common elements.

It is a basic principle of condominium law that, by choosing to live in a condominium, individual unit owners give up certain freedoms and accept certain restrictions upon rights which could be expected in separate, privately-owned property. Woodside Village Condo. Ass’n, Inc. v. Jahren, 806 So. 2d 452 (Fla. 2002); Hidden Harbour Estates, Inc. v. Norman, 309 So. 2d 180 (Fla. 4th DCA 1975). The statute provides two broad purposes for access: for maintenance or to prevent damage. Cypress Isle at the Polo Club Condo. Ass’n. Inc. v. Shelton, Arb Case No. 98-4090 (July 22, 1998).

Use of the word “irrevocable” emphasizes the legislative intent that the right of access cannot be limited by governing documents of a condominium or by a negotiated condition in the sale of units. Access will be allowed even when a unit owner has given a written warning that the association should not enter a unit. See Hidgon v. Seaspray Condo. Ass’n, Inc., Arb. Case No. 96-0430, Final Order (March 24, 1998). The interest of a unit owner to protect his or her property behind the locked door of his or her unit must yield to the need for the Association to protect condominium property. An association’s Declaration of Condominium puts unit owners on notice that condominium property also lies behind the locked door to his or her unit, including walls, pipes, wires, conduits and utility lines.

In general, issues of the timing of the entry and notification to the owners are a function of good business judgment, prudence, and civility, which are concepts that resist further definition in the case law. Higdon, supra. The fact that the statute, case law, and most governing documents do not attempt to define emergencies demonstrates the futility of an effort to specify unexpected events or foreseeable events happening at unexpected times.

That being said, Florida Statute §718.1265(1)(j) does provide condominium associations with emergency power to “mitigate further damage, including taking action to contract for the removal of debris and to prevent or mitigate the spread of fungus, including, but not limited to, mold or mildew, by removing and disposing of wet drywall, insulation, carpet, cabinetry, or other fixtures on or within the condominium property, even if the unit owner is obligated by the declaration or law to insure or replace those fixtures and to remove personal property from a unit.” However, it is unclear what kind of instance would be deemed an emergency.

Whenever possible, the association and property management should contact the unit owner in advance of using their right to access the unit and attempt to coordinate such access with the unit owner. However, in cases involving property damage of an emergency nature, the association would be able to use the key to access the unit even without advance notice to the owner. Associations should review their governing documents to determine if there are any additional rights afforded to the Association in relation to accessing units and/or performing necessary repairs within units.

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. Associations should seek legal advice for all issues related to their governing documents and enforceability. This Newsletter is for informational purposes only and should not be relied upon as a legal opinion.