Legal Q&A: Condo Associations Have Power Limits

BOCA RATON, Fla. – Question: We know that condo associations are granted broad rights to enter an owner’s unit, but does this include allowing or authorizing a neighbor to access a unit with the aid of a locksmith, without notifying the owner?

We were out of town and there was a noise coming from the roof, which a neighbor assumed was coming from our air conditioning unit. I (the unit owner) tried contacting the board and maintenance company to check out the roof, but they did not respond. No one ever responded and we assumed that the noise had resolved itself.

When I returned from out of town, I found my unit without power and with the doors open. As it turns out, the association allowed the complaining neighbor to enter my unit with a locksmith in order to cut my breaker to see if the noise was emanating from our a/c. They didn’t write me before or after access (still no response). Is this normally allowed? – N.Z.

Dear N.Z.: Absolutely not! Taking the story as you describe, your association made a very bad decision to allow your neighbor to break into your unit and turn off your power.

You are correct that the Condominium Act, at Section 718.111, Fla. Stat., along with most governing documents, grants condominium associations the irrevocable right to enter a 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.”

But what happened in your case was quite different.

First, it’s questionable whether hearing a noise, with no other indication of a condition that might cause damage to the property, would trigger a need to maintain, repair or replace the common elements, or would in some way represent a risk of damage to the common elements or a unit. As always, there could be more details that suggest the association had a legitimate fear of some kind of catastrophic event, but assuming the concern was simply a loud A/C that was annoying your neighbor, I question whether the association had the right to enter your unit without at least providing you with notice and coordinating their entry.

Second, and assuming that the association did have legitimate fears that the noise condition would somehow damage the property, they were still wrong to permit your neighbor to break into your home and enter your unit.

Frankly, what happened might even constitute criminal trespass.

Your neighbor was not, at least by your description, an agent of the association, and there is no statutory right to simply allow third parties to enter private property. Ignoring that for the moment, let’s assume that your neighbor was a board member, and this was a self-managed association. Allowing a board member to enter a unit without any backup witnesses is just bad practice. And in fact, look what happened. They left your unit open and without power.

If any damage was caused to your unit by the lack of power (mold growth, for example, which could happen depending on the weather); or if instead anything is missing from your unit, your association is likely responsible for that damage. Your neighbor could be held liable as well – though she would likely argue she was protected by the association’s purported authorization, her negligent failure to turn back on your power and properly secure the unit places some liability squarely on her shoulders as well. Your question is admirably balanced considering what you’ve described.

You need to check your unit very carefully to make sure there is no damage from the lack of power, and that nothing is missing. If anything is missing in particular, you should call the police and file a police report – and then find a lawyer to write a very stern demand letter to the association, requesting their insurance information so that you can file a claim against the association’s liability insurance (and possibly do the same for your neighbor, as well).

Even if you got lucky and your unit is in perfect condition, I would recommend hiring an attorney to write a cease and desist letter to both the association and your neighbor, warning them that if any third party enters your unit, or if the association enters your unit without establishing a need to maintain the common elements or prevent damage to the property or other units, you will consider it a trespass and immediately involve the police.

In my opinion, this behavior is just too reckless to allow it to sit without a response.

© Copyright 2023 The Palm Beach Post. Ryan Poliakoff, a partner at Backer Poliakoff & Foelster, LLP, is a Board Certified specialist in condominium and planned development law.