Condo Association’s Demand to Access Units must be “Reasonable and Necessary”

The Florida Condominium Act provides that an 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.” Fla. Stat. § 718.111(5)(a). It is tempting for an association to interpret that language too broadly, possibly subjecting itself to liability if a unit owner’s objection to an association’s demand for access to his or her unit leads to legal action. That was the situation in the recently decided case, Small v. Devon Condo B Ass’n., Inc., No 4D10-2302 (Fla. 4^th DCA April 2, 2014). This Blog post will discuss that case in which Florida’s Fourth District Court of Appeal made clear that a condo association’s demand for unit access must be “reasonable and necessary.” Id.

The case involved the association’s right to enter a unit to perform pest-control services. The owner of that unit, who had lived there for two decades, initially accepted those pest-control services until she was diagnosed with a breathing disorder and, upon her doctor’s recommendation, discontinued the use of that service. As a result, the association did not spray in her unit for nearly five years while the owner used an alternative form of pest control. In 2009, however, the association demanded access to the unit to perform its pest-control service and the unit owner refused to allow the association entry. Id. After arbitration, and other attempts at a pre-lawsuit solution, a lengthy legal battle ensued.

During the lawsuit, the association explained that it was willing to provide chemical-free pesticide and to even allow the owner to retain her own vendor so long as she provided proof that the pest-control services were being performed in some manner. The association also relied on Section 718.111(5), Florida Statutes, providing its opinion that the statute gave it the legal right and authority to enter all units for necessary maintenance and further argued that pest-control services fell within this authority. Id. The unit owner’s main defense to this argument was that the association’s demand was not “reasonable or necessary” and the association “had to show a legitimate need for access to her unit,” implying that pest-control services were not a legitimate need. Id.

Florida’s Fourth District Court of Appeal explained that there is a two-prong test for determining the validity of association actions: 1) the action must be within the association’s authority, and 2) the action must be reasonable. Id. More importantly, the court clarified that an association’s “claim” of necessity is insufficient; rather, the “association must establish that its actions are necessary.” Id. Applying this standard to the issue at hand, the court found the association failed to establish that its demand to enter the unit was necessary because the owner lived in the unit for several years without the association’s pest-control service and the association provided no proof there was a pest problem. Id. Moreover, the court determined that due to the unit owner’s documented health issues the association had also failed to establish that its demand was reasonable under the circumstances. Id.

The takeaway from this case for Florida’s condo associations is that although the Florida Condominium Act gives associations the irrevocable right of access to each unit, the association’s demand must still be viewed as reasonable and necessary. In this context, those terms, “reasonable and necessary,” as applied to condo associations, have legal definitions defined by the courts and case law over the years. To prevent subjecting itself to liability, an association should consult with an experienced attorney prior to making a demand to access an occupied unit to ensure its demand is both reasonable and necessary under the law.