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It's The Law: Condo Can Force Access To Apartments

Question: We are having trouble with an owner in our condominium who will not allow the association to enter his unit for repairs. How can we force the owner to cooperate?

Answer: Your problem is not uncommon. Some owners don't want the association meddling in their business and especially the privacy of their unit. Often, those owners have created a problem themselves through lack of maintenance, cleanliness or even pest control. The road to solution may be long and bumpy.

Section 718.1255 of Florida Statutes requires disputes involving authority of the board of directors to require an owner to take any action, or not take action, involving the owner's unit be submitted to mandatory non-binding arbitration with the Division of Florida Condominiums, Time Shares and Mobile Homes. That proceeding is usually conducted by submission of written position and argument by each party and an ultimate hearing by an arbitrator. The hearing is often conducted by telephone conference call.

If either party is unhappy with the result, that party can ask for a trial de novo, which means a trial with a judge as if the case had first been filed in court and not an appeal from the arbitrator's decision. That means the arbitration proceedings are not introduced in evidence, with the exception of the arbitrator's decision. By statute, the arbitrator's decision is admissible.

If your declaration of condominium or by-laws authorize imposition of a fine, you may also impose a fine against the unit owner. Keep in mind that the Condominium Act has strict procedures that must be followed when imposing a fine, including an opportunity for a hearing before 3 unit owners who are not board members to make the final decision. Imposition of a fine can be done separately or in tandem with the petition for arbitration.

In arbitration, and possibly later in court if either party is unhappy enough with the arbitrator's decision to ask for a trial, you will be seeking injunctive relieve requiring the unit owner to provide access. In doing so, you will ask for an order to enforce rights given the association under your condominium documents and Florida statutes. That includes the association's irrevocable right of access to each unit during reasonable hours when necessary for maintenance, repair or replacement of common elements, or to prevent damage to common elements or to a unit or units under Section 718.111(5) of the Condominium Act. You may also seek relief under Section 718.113(3) of the Condominium Act, which prohibits an owner from doing anything within his or her unit or on the common elements which would adversely affect the safety or soundness of the common elements or any portion of association property or condominium property which is to be maintained by the association.

You will probably also ask for attorney's fees as may be provided in your condominium documents and under Section 718.303(1) of the Condominium Act.

Injunctive relieve is not lightly granted by the courts. To obtain such relief, you must show that there is no adequate remedy at law, that there is actual and immediate harm and that in some cases that granting the injunction will avoid multiple law suits. You will also have to show that failure to grant the injunction will result in irreparable harm.

The recent case of Hollywood Towers v. Hampton is a good example. In that case, a unit owner refused the association access through her unit to repair her balcony. Repair of the balcony was the responsibility of the association as a limited common element. The unit owner argued that the association could do all of its work without going inside her unit. The association's engineer opined that the repair work needed to continue inside the unit for proper completion. The trial court found the association did not show it would be irreparably harmed because there was a clear question of whether failure to repair the balcony would cause immediate harm.

The appellate court reversed and sent the case back for further action by the trial judge. The court explained the business judgment rule is generally applied to decisions made by condominium associations. That means a trial court is to defer to the association unless there is proof of fraud, self dealing, dishonesty or incompetency in reaching the decision. The appellate court said that the trial court should not second guess the association under circumstances of that case.

The appellate court also explained that the Condominium Act allows a unit owner to file suit for an injunction against an association based on an alleged violation of the Condominium Act, as a violation of the Condominium Act is itself harm which authorizes unit owners to obtain injunctive relief. Although the Condominium Act does not specifically provide that power to the association, the court decided the same rule allows an association to pursue injunctive relief against a unit owner violating the Condominium Act.

These are complex cases that are often filled with emotion. Both arbitration and court proceedings are technical and can be delayed or lost by even the slightest misstep. You should retain an experienced condominium attorney before proceeding further.

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