COVID-19 and Condo Unit Entry – The Intersection of Exposure Risk and Protection of Association Property
By Jon Lemole, Esq.
These days Floridians find themselves sprinting towards hurricane season with the unfamiliar specter of a global pandemic still nipping at their heels. For condominium unit owners still practicing vigilant self-distancing, an association’s need to enter into their unit may seem like a giant “not happening!” But is it? What are an association’s duties and powers when it comes to entry into a condominium unit during the COVID-19 crisis?
The Association’s Maintenance and Repair Obligation
By now it shouldn’t come as a surprise to any property manager or board member that a condominium board has both statutory and contractual duties relating to the maintenance and repair of the community’s common elements. Florida courts have stressed that an association board acts at its distinct peril in neglecting these duties. Not only does the board face the possibility of being directed by a court to take action, or the association being assessed damages for its failure to act, but under the Florida Condominium Act an association faces the prospect of having to reimburse a unit owner’s attorneys’ fees and costs in securing relief against a recalcitrant association. See Coronado Condominium Association, Inc. v. Scher, 533 So. 2d 295 (Fla. 3d DCA 1988).
Entry into Units – Standard Authority
There are times where discharging its maintenance and repair obligations requires an association to enter into an owner’s unit. These instances are always ripe for disagreement. The Florida Condominium Act provides statutory authority on the association’s side in the right circumstances. Fla. Stat. 718.111(5) allows a condominium association to enter a unit during reasonable hours in order to maintain or repair that which the association has a duty to maintain or repair, “or as necessary to prevent damage to the common elements or to a unit or units.”
Despite this statutory ground for unit access, it is worth noting that Florida courts have construed these grounds narrowly. Recent appellate court decisions have looked for both: a) independent contractual authority to enter within the governing documents; and b) that the board’s decision to enter is supportable as a reasonable business judgment under the circumstances. See, e.g., Small v. Devon Condominium B Association, Inc., 141 So. 3d 574 (Fla. 4th DCA 2014).
The Florida Condominium Act also vests boards with special powers during times of declared states of emergency. Fla. Stat. 718.1265(j). If an official state of emergency is declared, a condo board can authorize entry into a unit in order to “mitigate further damage” by arranging “for the removal of debris, or to prevent or mitigate the spread of mold or mildew, or by removing wet drywall, insulation, carpet cabinets or other fixtures.” No doubt these approved mitigation efforts are directed squarely at hurricane events. However, the declaration of a state of emergency – even as to a global pandemic – will provide a board with broad statutory cover for acting decisively to mitigate concurrent storm or water-related damage to other units and common elements.
How Does COVID-19 Exposure Fit Into the Analysis?
Even without a declared state of emergency and enforced stay-at-home restrictions, owners may still be extremely reticent to allow strangers into their homes, and boards may be equally concerned about the safety of their employees and agents, or the legal ramifications of exposing people to the COVID-19 virus. These are valid concerns; yet, at the proverbial end of the day, a condo board must always act reasonably to protect, maintain and repair common elements and other units. State of emergency or not, as we approach the storm season in Florida many associations may find themselves in the unenviable position of having to risk COVID-19 exposures in performing otherwise reasonable actions to secure common property. It will be incumbent upon boards to ensure that their decisions are well-founded, documented, and otherwise reasonable under the circumstances.
Common sense should guide a board in implementing an entry into an owner’s unit. As much notice as is practicable should be given. CDC guidelines relating to social distancing and disinfecting should be followed by those entering the unit. Unit owners should be pre-informed on exactly what precautions will be taken to minimize exposure risk. A savvy condo board would do well to establish and communicate these emergency protocols now, rather than hastily cobble them together immediately before, during, or in the aftermath of a weather catastrophe or plumbing leak.
Despite the novel and significant risks posed by the current coronavirus pandemic, COVID-19 should be appreciated as an existing condition to be protected against by following CDC guidelines; it should not be viewed as an excuse for avoiding reasonable protective action against imminent or further property damage.
Jon is a partner at Tannenbaum Scro. He has a passion for standing by building and homeowners, community associations and municipalities facing disputes with developers, contractors, and design consultants. He also spends considerable time assisting and advising project owners in negotiating favorable and effective contracts for major capital improvement and repair/maintenance projects.
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