From time to time, an association will be confronted with the need to go into or onto an owner's property for the purpose of undertaking required maintenance as may be authorized by the governing documents. In some instances, the association, in order to prevent further damage to other property, may need to go into a unit to remediate mold or other water damage when the owner is unavailable or refuses to provide access to the association. In either situation, however, it is not uncommon to encounter owners who are not just uncooperative but some who threaten violence. What is an association to do?
The association must understand what rights it may have. For homeowner association communities, the Homeowner Association Act, Chapter 720, Fla. Stats. unlike the Condominium Act, Chapter 718, Fla. Stats. does not have any specific statutory language governing access. In such a situation, the Board of Directors and management must look to its governing documents which almost always (especially for townhome communities) have a provision that allow for reasonable access for the association to the property in order to fulfill its maintenance obligations.
As for condominiums, Section 718.111(5) Fla. Stats. provides a statutory right for access to units during reasonable hours, when necessary, for the maintenance, repair, or replacement of any common elements. The statute further provides guidance on the process a condominium association must take to access an abandoned unit. For example, except when bona fide emergency access is needed, condominium associations should give the unit owner written notice of its need to enter the unit. If the unit is abandoned, at least two (2) days' notice is required. For units that are not abandoned, the statute is silent on the amount of notice to be given. Absent a provision in the Declaration of Condominium, you may, for guidance, follow Florida's Landlord-Tenant Act which defines reasonable notice as 12 hours prior to entering between 7:30 a.m.-8 p.m. Homeowner associations should follow similar protocols unless the governing documents provide specific notification timeframes. Typically, a homeowners association's access is limited to the exterior of the property, not the inside of the home, absent compelling circumstances.
Although an association may have access rights it does not guarantee that the owner will be cooperative. In such situations, a homeowners association may serve a pre-suit mediation demand and seek entry through litigation if mediation fails to resolve the matter. Likewise, condominium associations have the same right or may file an arbitration case with the Division of Land Sales, Condominiums and Mobile Homes to obtain an order requiring the owner to allow access.
Of course, an association should never enter a unit without a proper purpose as defined by statute or your governing documents. For example, on February 28, 2024, the Fourth District Court of Appeal rendered an opinion in Paese v. State, 4D2023-1103 in which the court upheld an owner's Stand Your Ground Defense, when a condominium unit owner used non-deadly force against a code enforcement officer who entered her unit without permission with the assistance of the property manager. The Court noted that as to the property manager who escorted the code enforcement officer into the unit, Section 718.111(5), Fla. Stat. only allows access during reasonable hours, when necessary for the maintenance, repair, or replacement of any common elements.... Or as necessary to prevent damage to the common elements or to a unit. In other words, the statute does not give the association the right to enter at any time, or for any purpose and accordingly, the association and management may be exposed to civil damages and/or criminal charges if the entry is not authorized for a proper purpose under the law or community documents.
If you are ever in doubt as to the association's access rights, we suggest that you discuss the situation with your association's counsel prior to attempting to access a home or condominium unit.
Peter S. Sachs is a founding partner of Sachs Sax Caplan P.L. in Boca Raton. He is board certified in Condominium and Planned Development Law by the Florida Bar.
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