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AS
THINGS QUIET DOWN
By
Eric Glazer, Esq.
Published
May 26, 2014
Today
is Memorial Day which unofficially kicks off the summer.
It’s a strange and quiet time of year coming up for
most associations. The
budget and the elections are over with, the Board members are
hopefully certified by now, and the next election is still far
enough into the future so there’s nothing to plan for at the
moment. Dare I say
it, but it seems that’s it’s time, at least for the next few
months, to simply sit back, relax and use the pool, exercise
room, bar b que and all of the other amenities your association
has to offer.
There
are other owners however who see this time of year as an
opportunity to
escape the brutal
Florida
summer. They simply
pack up and head north, leaving their unit vacant.
But remember…..just because you leave your Florida
condominium for a few months doesn’t mean that your
responsibility to continuously maintain your unit stops.
Even when you’re away from your home, there is
still a responsibility to maintain it.
Every
declaration of condominium has a general clause that requires
the owner of the unit to maintain his or her unit in good
condition. In fact,
arbitration decisions have held that:
"where
an owner does not reside in the unit, it is incumbent on the owner
to routinely and periodically examine and inspect the unit to
ensure the absence of leaks and conditions that would otherwise
lead to damage to the building and its occupants.
In recognition of the fact that where multiple owners
occupy a single building, a problem that develops in one unit
may well affect other units and the common element components of
the building." See:
Los Prados Condominium Association v. Lemley Case No.
03-6092, May 25, 2004, Arbitrator, Scheuerman.
Many associations have rules or provisions in their
declarations that require owners to leave a key with the
association to their unit, in order that the association has the
ability to enter the unit in the absence of the owner.
Unit
owners may be required to provide the Association with keys to
their units, because the right of access is for the protection
of all units within a building and the owner of one unit may not
be available to give permission at the time of an emergency. Costa
Bella Ass'n, Inc. v. Scuteri, Arb. Case No. 02-4624,
Final Order (June 7, 2002). A common type of emergency occurs
when a plumbing leak in one unit causes damage to another unit
or to the common elements.
See
Oceanview
Towers
Condo. Ass'n, Inc. v.
Diaz, Arb. Case No. 2006-01-6632, Final Order (January 3,
2007).
Unit owners can also forget
about refusing to provide a key.
They will lose in arbitration every time.
They can also forget about placing any restrictions on
the association’s right of entry or otherwise complaining
about what is or isn’t an emergency.
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 enunciation
and definition in the case law. The fact that the statute, case
law and 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.
In re: Petition For Arbitration,
The Marina Club of Tampa Condominium Association, Inc.,
Petitioner, v. Robert B. Schwartz, (May, 2012)
Respondent's defense
that the Association has not met his conditions for entry is
invalid. An impermissible denial of access occurs where a unit
owner seeks to place conditions upon the association's access to
his or her unit.
Park
Lake
Towers
Condo. Ass'n, Inc. v.
Halley, Arb. Case No. 2003-08-3367, Amended Final Order
on Motions for Attorney's Fees (January 28, 2004)(Where the
association sought access to the respondent's unit in order to
fix a plumbing assembly, and where the respondent directed that
the association would only be permitted access upon providing
proof of insurance and a valid building permit, the respondent
was held to have denied access to the unit.) Pursuant to Section
718.111(5), Florida Statutes, Respondent must allow the
Association access to his unit to repair the common elements
without any conditions.
A few years ago, my sister’s condo unit was accessed by
someone who stole the keys from the condo’s office.
At first, she didn’t even realize it.
Luckily, nothing valuable was stolen.
However, after about the third day in a row, she noticed
that something was wrong when there was a half eaten apple on
her kitchen counter. A
check of the refrigerator showed that the crook also helped
himself to some Weight Watchers frozen dinners.
So my legal advice to the snow birds is…….don’t
forget about your unit while you’re away and give up your key
to the association -- but you may want to hide your food.
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About
HOA & Condo Blog
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Eric Glazer graduated from the University of
Miami School of Law in 1992 after receiving a B.A. from
NYU. He is currently entering his 20th year as a
Florida
lawyer practicing |
community association law and is the owner of
Glazer and Associates, P.A. an eight attorney law firm in
Orlando
and Hollywood. For the past two years Eric has been the host of Condo Craze and
HOAs, a weekly one hour radio show on 850 WFTL. See: www.condocrazeandhoas.com.
He is the first attorney in the State of Florida
that designed a course that certifies condominium residents as
eligible to serve on a condominium Board of Directors and has
now certified more than 7,500 Floridians. He is certified as a
Circuit Court Mediator by The Florida Supreme Court and has
mediated dozens of disputes between associations and unit
owners. Finally, he recently argued the Cohn v. Grand
Condominium case before The Florida Supreme Court, which is
perhaps the single most important association law case decided
by the court in a decade.
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