ACCESSING A CONDOMINIUM UNIT

ACCESSING A CONDOMINIUM UNIT 
WHEN THE OWNER IS NOT PRESENT

Michael-BenderBy Michael S. Bender, Esq., Kaye Bender Rembaum, P.L.

While Section 718.111(5) of Florida Statutes provides associations with the irrevocable right to access all units in the condominium, such right is not absolute. The qualifying portions of the Statute are “when necessary,”  “to perform maintenance, repair or replacement of common elements or of any portion of a unit to be maintained by the association,” and “to prevent damage to the common elements or to a unit or units.”  Occasionally, a board may be overzealous in its desire to access the unit and there can be consequences from doing so improperly.

The Fourth District Court of Appeal reviewed this issue in the recent case of Small v. Devon Condominium B Association, Inc.  In this case, the association had a practice of providing monthly pest control services within each unit.  After many years, unit owner Small informed the association that she had learned she suffered from a breathing disorder and requested the association stop treating her unit, indicating she would take care of the pest control herself.  The Board agreed and did not treat her unit for about 5 years.  In 2009, a new Board took over and demanded access to the unit to perform pest control services.  
The unit owner declined and the lawsuit followed.

Ultimately, the Appellate Court ruled in favor of the unit owner, stating that an association must demonstrate the desired access is BOTH reasonable  and necessary for such access to be proper.  An association claiming “necessity” alone is not sufficient.  The facts of the particular case clearly demonstrated that, notwithstanding the association claiming the necessity of access, the previous five-year history at the unit did not support that conclusion.  Additionally, the personal medical issues of the unit owner supported the conclusion that the association request was not reasonable.

The practice lesson to be learned from this case is that care must be exercised by the board of directors when considering 
accessing a unit.  The facts and circumstances involved should be thoroughly reviewed and if there is any question whether the 
association should be accessing the unit without the permission of the unit owner, consultation with the association attorney should occur before doing so.

 

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ACCESSING A CONDOMINIUM UNIT