“The Association’s Right of Access” – FCAP Managers Report

Among the states, Florida has a long and proud history of defending we the people’s right to privacy and the right to exclude others from your property. However, your condominium association should know that Florida law also makes clear that these rights, among others, are subject to competing interests that uniquely arise in the context of a condominium and that your condominium association has a right of access to condominium units despite the owners’ objections.

As recognized by the Florida Supreme Court in Woodside Village Condominium Ass’n, Inc. v. Jahren, 806 So. 2d 452, 456 (Fla. 2002):

• From the outset, courts have recognized that condominium living is unique and involves a greater degree of restrictions upon the rights of the individual unit owners when compared to other property owners.[….]Inherent in the condominium concept is the principle that to promote the health, happiness, and peace of mind of the majority of the unit owners since they are living in such close proximity and using facilities in common, each unit owner must give up a certain degree of freedom of choice which he might otherwise enjoy in separate, privately owned property. Condominium unit owners comprise a little democratic sub society of necessity more restrictive as it pertains to use of condominium property than may be existent outside the condominium organization.

Thus, Florida courts have time and time again confirmed that the property rights of condominium unit owners have in their units are subject to Chapter 718 of Florida Statutes and the association’s governing documents, such as its declaration of condominium.

To that end, Section 718.111(5)(a), Florida Statutes, expressly provides condominium associations the irrevocable right of access to each unit, during reasonable hours, when necessary for 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:

• (5) RIGHT OF ACCESS TO UNITS.—
• (a) 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.

Furthermore, Section 718.111(5)(b)(1) of Florida Statutes provides that in addition to the foregoing powerful right of access and regardless of whether authority is provided in the declaration, an association, at the sole discretion of its board of directors may enter an abandoned unit as follows:

• (b)1. In addition to the association’s right of access in paragraph (a) and regardless of whether authority is provided in the declaration or other recorded condominium documents, an association, at the sole discretion of the board, may enter an abandoned unit to inspect the unit and adjoining common elements; make repairs to the unit or to the common elements serving the unit, as needed; repair the unit if mold or deterioration is present; turn on the utilities for the unit; or otherwise maintain, preserve, or protect the unit and adjoining common elements.

Section 718.111(5)(b)(3) also empowers the Association to charge unit owners for expenses incurred with accessing their abandoned condominium unit:

• 3. Any expense incurred by an association pursuant to this paragraph is chargeable to the unit owner and enforceable as an assessment pursuant to s. 718.116, and the association may use its lien authority provided by s. 718.116 to enforce collection of the expense.

In fact, pursuant to Section 718.111(5)(b)(4), Florida Statutes, the Association may even petition a Court to appoint a receiver to lease out an abandoned unit:

• 4. The association may petition a court of competent jurisdiction to appoint a receiver to lease out an abandoned unit for the benefit of the association to offset against the rental income the association’s costs and expenses of maintaining, preserving, and protecting the unit and the adjoining common elements, including the costs of the receivership and all unpaid assessments, interest, administrative late fees, costs, and reasonable attorney fees.

This article is not intended to be exhaustive on the matter of accessing a unit, and a condominium association should always consult legal counsel before accessing a unit, regardless if it is abandoned, and regardless if the owner consents.

The aforementioned statutory provisions are also subject of other statutory provisions.  For example, Section 718.111(5)(b), Florida Statutes, also provides as follows with respect to abandoned units:

• For purposes of this paragraph, a unit is presumed to be abandoned if:
  • a. The unit is the subject of a foreclosure action and no tenant appears to have resided in the unit for at least 4 continuous weeks without prior written notice to the association; or
  • b. No tenant appears to have resided in the unit for 2 consecutive months without prior written notice to the association, and the association is unable to contact the owner or determine the whereabouts of the owner after reasonable inquiry.
• 2. Except in the case of an emergency, an association may not enter an abandoned unit until 2 days after notice of the association’s intent to enter the unit has been mailed or hand-delivered to the owner at the address of the owner as reflected in the records of the association. The notice may be given by electronic transmission to unit owners who previously consented to receive notice by electronic transmission.

The provisions of your condominium association’s declaration or other governing documents may not only impose other requirements concerning the right of access – they may even contradict Chapter 718 of Florida Statutes on the matter.

Accordingly, while your condominium association has a right to access condominium units, your condominium association should always consult legal counsel early and often when it comes to exercising that right, as the matter can be tricky to navigate and costly to address if done so without proper planning and analysis.

To read the original FCAP article, please click here.

Nicolas M. Jimenez is a Community Association attorney in the Miami office. Mr. Jimenez has experience representing clients in Florida state and federal courts and has a diverse range of subject matters, including matters relating to contractual disputes, non-compete litigation, intracorporate disputes, landlord-tenant disputes, employment disputes, class actions, and condominium related litigation.