Did you know that, according to section 718.111(5)(a), Florida Statutes, your condominium 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?”
In Small v. Devon Condominium B Association, Inc. (a 4th DCA case), Small, suffering from a breathing disorder, discontinued her condominium association’s optional pest control services in 2005. In 2009, the association demanded to access the unit to perform pest control services. Small refused. The association filed a petition for condominium arbitration seeking access to her unit. A default judgment was entered in favor of the association which provided it with monthly access to her unit to perform pest control services. However, a condominium arbitration order is not final and binding until 30 days have passed from the date of the arbitrator’s order.
During this 30 day period, the losing party can appeal to the circuit court for a trial “de novo”, (which essentially means holding a new trial) and that is exactly what Small did. In response, the condominium association counterclaimed against her for injunctive relief, breach of contract and for a request to uphold the arbitrator’s award.
During the proceedings, the association argued that it had the irrevocable right to enter all units for necessary maintenance. In response, Small presented testimony from her physician who provided that “it would be deleterious to her health to be exposed to any chemicals.” Small also questioned whether the association’s demands were “reasonable and necessary”. Small’s arguments failed. The trial court’s order provided that, amongst other things, the association would have access to the unit on the third Monday of every month to perform pest control services.
Small appealed the trial court’s decision. In response, the association moved for contempt when she prevented the association from performing pest control services until she could have someone inspect the spray to be used. She continued to refuse access to her unit because her expert found that the spray was harmful to her breathing condition and that there was no evidence of insects. The Court then found Small in contempt of court. Thereafter, when Small was still not compliant, the association sought an enforcement order against her, which was decided in the association’s favor. By this time there was both an order of contempt and enforcement against Small.
Small appealed the enforcement order, but not the court’s contempt order issued against her. She argued that an issue of material fact existed as to whether the association’s demands were reasonable and necessary. The association argued that its actions were necessary and reasonable to prevent a pest infestation that may spread to the condominium’s common elements. The Court explained that for access to a unit, the association’s actions must be (1) within the association’s authority and (2) reasonable. Further, a mere “claim” of necessity is not sufficient.
The Court reversed the trial court’s enforcement order. However, the Court affirmed the contempt order because Small failed to appeal it, thereby waiving any challenge on the merits of the contempt order. Furthermore, the Court explained that “a contempt order may stand even if it is based on an erroneously entered order.”
As to Small, it would have been interesting to see if her situation would have turned out differently had she made a request for a reasonable accommodation to her association’s pest control policy under the Federal Fair Housing Act.
For those readers who are members of a homeowners’ association, you can breathe a sigh of relief (pun intended). Unlike condominium associations, homeowners’ associations do not have a statutory right to access an owner’s lot. However, a homeowners’ association’s declaration of covenants may grant the association a right to access an owner’s lot, but not the home, in emergency circumstances or for purposes of undertaking an owner’s maintenance obligations on the lot in the event the owner fails to properly maintain his or her lot.