Friday, April 4, 2014

An owner's right to privacy vs. Association's need to perform preventative services


A recent case out of Florida's Fourth DCA involved a condominium owner's longstanding refusal to allow her association to enter her unit to perform routine pest control services.

The owner claimed that she had a breathing disorder which would be worsened if the association treated her unit for insects and other pests. The owner claimed that she would use a non-chemical form of pesticide but refused to allow the association access to her property to confirm that the unit remained pest-free.

The association argued that Section 718.111(5) of the Condominium Act as well as the provisions of its governing documents granted it the right to enter units for necessary maintenance. The statutory language provides as follows:

Right of access to units--The 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 or units.

The association did offer to allow the owner to provide her own vendor who would use a chemical-free pesticide so long as the owner provided proof that such services were actually being performed.

The trial court ultimately entered an order in favor of the association which laid out a King Solomon-like solution as follows:

-On the third Monday of every month, the owner would permit the association access to her unit for the purpose of performing pest extermination services'
-The pest extermination services would be performed with pesticides purchased and provided by the owner and given to the association to use or if no such chemical-free pesticides were provided, then the association would have to use non-toxic chemical-free pesticides' and
-The owner also had the choice to employ her own exterminator to keep her unit pest-free and provide the association with a copy of her invoice for such services to demonstrate that they were being performed on a monthly basis.

Did this solve the problem? Of course not. Both sides argued that they were the prevailing party and therefore, worthy of having their attorney's fees awarded. The association argued that it had prevailed since it was granted access to the owner's unit. The owner argued that she had prevailed because the association was required to use a chemical-free pesticide. In the interim, the owner continued to refuse the association access to her unit and continued to refuse to provide proof that any services were being performed to keep the property pest-free.

The 4th DCA reversed the summary judgment order and the attorney's fees entered pursuant to that order and affirmed the contempt and enforcement orders.

The overarching question in my opinion is whether or not the owner's chemical sensitivity is a red herring designed to mask the fact that this owner was not happy with giving the association entree to her unit under any circumstances.

5 comments:

  1. There are hyper sensitive individuals and the results from exposure can be lethal to the individual. The condition can be medically diagnosed, and many states have various requirements of Pest Control Operators. Sounds like in this case the owner may not have been able to secure the medical diagnosis and was just being difficult. However, those with certain medical conditions should absolutely be protected from any circumstances that could be detrimental to their well being.

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  2. Donna, When all was said and done then, was it the case that neither side got its attorney's fees?

    Clay

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  3. Pretty awful (though I haven't read the actual decision) result.

    An order that pesticides be "chemical-free" would be completely unenforceable because everything is made of chemicals. The only "chemical free" pesticide would be a lot of stomping on bugs.

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  4. Those with medical sensitivities should absolutely be protected.

    The case is ongoing and the issue of attorney's fees depends on who ultimately prevails (both sides were claiming victory on that end).

    Vincent, your comment made me actually laugh out loud! I agree although I have heard tea tree oil might kill the more fragile types of pest out there. For roaches, it is probably a cocktail!

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  5. More of a question than a comment, after two thieving maintenance men who used there pass keys to enter owner's dwellings when they are not there, I requested that the board member and the pest control guy do my unit within a window for me to be there and was flatly refused. I complained to the mgmt. company and I told them I would spray. I see this is actually a violation of the law and condo docs. I have asked for the written policy on how a master key is handed out and been ignored. We are at an impasse. What are my rights and obligations

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