STATE OF FLORIDA DEPARTMENT OF BUSINESS AND PROFESSIONAL REGULATION DIVISION OF FLORIDA CONDOMINIUMS, TIMESHARES AND MOBILE HOMES SUMMARY FINAL ORDER

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1 STATE OF FLORIDA DEPARTMENT OF BUSINESS AND PROFESSIONAL REGULATION DIVISION OF FLORIDA CONDOMINIUMS, TIMESHARES AND MOBILE HOMES IN RE: PETITION FOR ARBITRATION Spanish Trace Association, Inc., Petitioner, v. Case No Angel Correa and Marta Correa, Respondents. / SUMMARY FINAL ORDER Statement of Issue Whether under the Declaration of Condominium and Chapter 718, Florida Statutes, Respondents are required to provide access to their unit to allow inspection and repair of suspected plumbing leaks in the common elements. Procedural History On October 21, 2010, Spanish Trace Association, Inc., ( Association ) filed a petition for non-binding arbitration naming Angel Correa and Marta A. Correa, and an unknown tenant as Respondents. An Order Requiring Answer was entered on November 1, Respondents Angel Correa and Marta Correa filed an answer to on November 23, This order is entered based upon the pleadings and attachments filed in this case. Findings of Fact 1. Spanish Trace Association, Inc., is the legal entity responsible for the maintenance and operation of Spanish Trace, a Condominium. 1

2 2. Respondents Angel Correa and Marta A. Correa are the owners of Unit # I-24 of Spanish Trace and members of the condominium association. 3. The condominium consists of a number of two-story buildings. 4. Over a period of time prior to August 2010, employees of the Association made verbal requests to the tenant residing in Unit I-24, for permission to enter the unit to inspect and maintain plumbing servicing the unit. 5. In August and October 2010, the Association s attorney made a written request to Respondents Angel Correa and Marta A. Correa for access to the unit for plumbing maintenance. 6. Respondents object that the Association has not provided sufficient evidence that all measures have been taken to confirm that repair of leaks could be performed without access to Respondents unit. 7. The Answer filed by Respondents Correa denies the existence of an unknown tenant at the unit and there is no allegation of written pre-arbitration notice to the tenant. Conclusions of Law The Division has jurisdiction over this matter pursuant to section , Florida Statutes. Rule 61B , Florida Administrative Code, requires entry of a summary final order when no disputed issues of material fact have been raised by the pleadings. The authority of an Association to enter a condominium unit without the owner s permission is based upon Section (5), Florida Statutes, which provides: (5) RIGHT OF ACCESS TO UNITS. The association has the irrevocable right of access to each unit during reasonable hours, when 2

3 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 common elements or to a unit or units. The Unit owned by Respondent is defined in Article V of the Declaration of Condominium for Spanish Trace, A Condominium: (emphasis added) A. Units The term Units, as used herein, shall mean and comprise the two hundred and ninety-two (292) separate dwellings in the Condominium which are located and individually described in Exhibit C hereto, in 34 Buildings and, if Phase II is added, it shall also mean and comprise the 212 separate dwellings in 21 Buildings, excluding, however: (1) all spaces and improvements lying beneath the undecorated and/or unfinished inner surfaces of the perimeter walls and floors, and above the lowest horizontal plane of the upper structural element of each Unit; and (2) all spaces and improvements lying beneath the undecorated and/or unfinished inner surface of all interior columns, bearing walls and/or partitions; and (3) all pipes, ducts, vents, wires, conduits and other facilities, equipment and/or fixtures running through any interior wall or horizontal or vertical partition of a Unit, for the furnishing of utility services, heating and cooling and/or ventilation to Units, Common Elements and/or Limited Common Elements. Maintenance responsibilities are spelled out in Article XIII of the Declaration, including, as pertinent to this case: (emphasis added) C. Limited Common Elements. The responsibility for, and the cost of, keeping clean and in orderly condition those Limited Common Elements (other than parking spaces) which are assigned or granted to, and exclusively serve, a certain Unit or Units to the exclusion of other Units, shall be borne by the owner(s) of the Unit(s) to which the same are appurtenant. The Association shall be responsible for maintaining, repairing, and replacing the aforesaid Limited Common Elements, and shall assess against and collect from the owners of all Units to which said Limited Common Elements are appurtenant, the cost of such maintenance, repair and replacement. The interest of Respondents to protect their property behind the locked door of 3

4 their unit must yield to the need for the Association to protect condominium property. The Declaration put Respondents on notice that condominium property also lies behind the locked door to their unit, including walls, pipes, wires, conduits and utility lines. The emphasized language of the quoted passages means that, in this condominium, unit owners have no right to repair limited common element plumbing serving their unit. It is a basic principle of condominium law that, by choosing to live in a condominium, individual unit owners give up certain freedoms and accept certain restrictions upon rights which could be expected in separate, privately owned property. Woodside Village Condominium Association, Inc. v. Jahren, 806 So. 2d 452 (Fla. 2002); Hidden Harbour Estates, Inc. v. Norman, 309 So. 2d 180 (Fla. 4th DCA 1975). The statute provides two broad purposes for access: for maintenance or to prevent damage. Cypress Isle at the Polo Club Condominium Assoc., Inc. v. Shelton, Arb Case No (July 22, 1998). The last clause of the section (5), or as necessary to prevent damage to common elements or to a unit or units, must be given its plain meaning, and must be distinguished from the first clause which limits maintenance access to reasonable hours. Damage access may be required without notice at unreasonable hours. Use of the word irrevocable emphasizes the legislative intent that the right of access cannot be limited by governing documents of a condominium or by a negotiated condition in the sale of units. Access will be allowed even when a unit owner has given a written warning that the association should not enter a unit. See, Hidgon v. Seaspray Condominium Association, Inc., Arb. Case No , Final Order (March 24, 1998). A key may be required because the right of access is for the protection of all 4

5 units within a building and the owner of one unit may not be available to give permission at the time of an emergency. Costa Bella Association, Inc. v. Scuteri, Arb. Case No , Final Order (June 7, 2002). A common type of emergency occurs when a plumbing leak in one unit causes damage to another unit or to the common elements. See Oceanview Towers Condominium Association, Inc. v. Diaz, Arb. Case No , Final Order (January 3, 2007). In general, issues of the timing of the entry and notification to the owners are a function of good business judgment, prudence, and civility, which are concepts resisting further enunciation and definition in the case law. Higdon, supra. The fact that the statute, case law and governing documents do not attempt to define emergencies demonstrates the futility of an effort to specify unexpected events or foreseeable events happening at unexpected times. No direct order can be entered against the theoretical unknown tenant because of the lack of pre-arbitration notice and lack of personal service in this arbitration case. It is conceivable that Respondents Correa believe the occupant(s) or resident(s) do not fall within the legal definition of a tenant. However, no occupant of a condominium unit has a right to interfere with, or prevent maintenance of, condominium property that the owners of the unit do not have. Additionally, the unit owners have the responsibility to fully enforce the governing documents with respect to any occupier or guest using the unit. Based upon the foregoing, it is ORDERED: 1. Within 14 days of the date of this Order, Respondents Angel Correa and Marta A. Correa shall provide access to Unit # I-24 of Spanish Trace, to a plumber 5

6 designated by the Association to inspect common elements and repair the same, if necessary; 2. To provide the required access, Respondents Correa, as landlords, shall advise any person(s) occupying the unit of the contents of this Order, and take such other steps as may be necessary to cause them to comply with the law and the condominium governing documents; 3. If Respondents do not take affirmative steps within 14 days to provide access to a plumber, a security and/or maintenance employee of the Association shall enter into Unit #I-24, without notice, to perform the necessary inspection and maintenance. DONE AND ORDERED this 30th day of November, 2010, at Tallahassee, Leon County, Florida. Bruce A. Campbell, Arbitrator Dept. of Bus. & Prof. Reg. Arbitration Section 1940 North Monroe Street Tallahassee, Florida Trial de novo and Attorney s Fees This decision shall be binding on the parties unless a complaint for trial de novo is filed in accordance with section , Florida Statutes. As provided by section , Florida Statutes., the prevailing party in this proceeding is entitled to have the other party pay reasonable costs and attorney s fees. Any such request must be filed in accordance with Rule 61B , F.A.C Certificate of Service I hereby certify that a true and correct copy of the foregoing final order on default has been sent by U.S. Mail to the following persons on this 30th day of November, 6

7 2010: Steven A. Fein, Esq. 900 S. W. 40th Avenue Plantation, FL Angel Correa and Marta A. Correa S.W. 99th Court Miami, FL Bruce A. Campbell 7