STATE OF FLORIDA DEPARTMENT OF BUSINESS AND PROFESSIONAL REGULATION DIVISION OF FLORIDA LAND SALES, CONDOMINIUMS, AND MOBILE HOMES IN RE: PETITION FOR ARBITRATION COSTA DEL SOL CONDOMINIUM ASSOCIATION, INC., Petitioner, v. Case No. 02-5011 FRANCIS H. MORRELL, Respondent. / SUMMARY FINAL ORDER Comes now, the undersigned arbitrator, and enters this order as follows: On April 31, 2002, Costa Del Sol Condominium Association, Inc. (petitioner or association) filed a petition for arbitration against Francis H. Morrell (respondent or unit owner). The petition alleges that the respondent has failed to provide the association with a key to his unit as required by the condominium documents and Section 718.111(5), Florida Statutes. The respondent was served on June 17, 2002, and filed an answer to the petition on October 3, 2002. In his answer, the respondent admits that he has not provided a key to his unit to the association. In his answer, the respondent asserts that he did not receive the first pre-arbitration notice, although he admits receiving the second notice attached to the petition for arbitration. The respondent asserts various defenses, most of which are either without merit or are legally insufficient. 1
This order is entered pursuant to Rule 61B-45.030, Florida Administrative Code, which permits the arbitrator to enter a summary final order where there are no disputed issues of material fact. The petition alleges that the respondent has failed to provide to the association a key to his unit. The respondent did not deny this allegation. As provided in the answer form and Rule 61B-45.019, Florida Administrative Code, all facts not specifically denied shall be deemed admitted. Article XI, Paragraph J, of the declaration of condominium for Costa Del Sol Condominium states in pertinent part: The Association shall have the right to have keys to all units and in the event that an owner installs a new or additional lock or locks on the front or entrance door to a unit, the owner shall furnish the Association with a key to all said locks within 48 hours after the new lock or locks are installed. Moreover, Section 718.111(5), Florida Statutes, provides that 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 right of access granted by this section is broad enough to support a requirement that unit owners must provide keys to their units to the association. See Emerald Seas Condominium Association, Inc., et al., v. Harvan, et al., Arb. Case Nos. 97-0057 and 97-0125, Summary Final Order (July 31, 1997)(arbitrator held that Section 718.111(5), Florida Statutes, permits an association to require unit owners to provide keys to their units). An association's right of access to the 2
units is broad and is not restricted to instances in which an emergency is presented, but comes into play whenever the association's related functions of maintenance, repair, or replacement of the property are implicated. See Higdon v. Seaspray Condominium Association, Inc., Arb. Case No. 96-0430, Summary Final Order (March 24, 1998); see also, Carmel by the Lake Condominium Association, Inc. v. Mullin, Arb. Case No. 95-0437, Final Order, January 31, 1996)(association is entitled to enter the unit when necessary for purposes of maintaining or repairing the common elements.) It is reasonable to grant to an association a right of access to the units in a condominium. An association is responsible for the operation of the condominium as well as for the maintenance of the common elements, as provided by section 718.113, Florida Statutes. The fact that an individual gives up a measure of personal freedom in order to accommodate the interests of the majority of the community is inherent in the concept of condominium ownership. In Sterling Village Condominium, Inc. v. Breitenbach, 251 So. 2d 685, 688 (Fla. 4th DCA 1971), the court held that:...every man may justly consider his home his castle and himself as the king thereof; nonetheless his sovereign fiat to use his castle as he pleases must yield, at least in degree, where ownership is in common or cooperation with others. The benefits of condominium living and ownership demand no less... The respondent asserts, in part, as defenses that prior to providing a key the respondent has a right to know how the keys are stored, under what conditions the key will be used, who will be allowed to use the keys. These and many other 3
issues raised by the respondent confuse the issue of the association s right to have access to the unit and the fiduciary duty of the association to properly exercise this right. While the respondent may not agree with the right of access granted to the association nor the manner or circumstances in which the association exercises this right, he has presented no defense to withholding a key to his unit from the association. The right of access of the association is provided for the protection of all unit owners, and a key may be required for the same because, in the event of an emergency, precious minutes could be lost if the association had to find an owner or resort to a locksmith or break the door down. See Pine Ridge North Village IV Condominium Association, Inc. v. Gennaro, Arb. Case No. 94-0377, Summary Final Order (January 10, 1995); Emerald Seas Condominium Association, Inc. v. Harvan, Arb. Case No. 97-0057, Summary Final Order (July 31, 1997). The issue of whether the association will or will access the unit in a manner that meets the respondents satisfaction does not excuse his failure to provide the association access to his unit as required by Florida Statutes and the declaration. In light of the irrevocable nature of this right, numerous defenses, including those posed in this case, have been considered and rejected. See Valencia Condominium Residences Association, Inc. v. Banoub, Arb. Case No. 99-2302, Summary Final Order (April 17, 2000); Park Lake Towers Condominium Association, Inc. v. Palfrey, Arb. Case No. 00-1521, Summary Final Order (November 13, 2000); Helen Mar Condominium Association, Inc. v. Marshall, Arb. Case No. 98-4465, Final Order (September 22, 1998); Swisher v. Building Three of Country Club Apartments at Bonaventure 32 4
Condominium Association, Inc., Arb. Case No. 99-1466, Final Order (August 31, 1999). Also insufficient is the defense that property was stolen, damaged, used or disarranged by persons gaining entry with the key provided. See Valencia, Park Lake, supra. Even the claim that the owner keeps national defense secrets unsecured in his unit was rejected in Emerald Seas, supra. Therefore, respondents defenses of fear of damage to or loss of property and distrust of association must be denied. Petitioner can, of course, be held responsible for its actions, and deficiencies in control procedures may form the basis of an action for an injunction against the association, but the key must be provided. The respondent asserts that he did not receive the first pre-arbitration notice that was mailed to him on January 21, 2002. The respondent admits that he received the pre-arbitration notice mailed on May 1, 2002, but, alleges that the seven days provided to him in the letter to provide a key to his unit to the association did not afford him a reasonable period of time in which to comply the associations demands. The respondent s argument is without merit. Even assuming that the respondent was afforded only two days to comply, respondent alleges that he received the notice five days after it was mailed, 48 hours is ample opportunity to make a copy of the key and provide that key to the association. Accordingly, since the respondent has admitted that he has not received prearbitration notice and 48 hours notice provides ample opportunity to comply with the association s demand, this defense is without merit. 5
Accordingly, the respondent s failure to provide a key to his unit to the association the failure violates the Section 718.111(5), Florida Statutes and Article XI, Paragraph J, of the declaration of condominium; consequently, the association will be granted the relief requested. Based on the foregoing, it is ORDERED: The relief requested by the petitioner is GRANTED. The respondent shall, within 10 days of the date of this order, provide the association with a key to his unit. In the future, the respondent shall abide by Article XI, Paragraph J of the declaration and Section 718.111(5) Florida Statutes. DONE AND ORDERED this 14 th day of October 2002, at Tallahassee, Leon County, Florida. RIGHT TO TRIAL DE NOVO Richard M. Coln, Arbitrator Department of Business and Professional Regulation Arbitration Section 1940 North Monroe Street Tallahassee, FL 32399-1029 PURSUANT TO SECTION 718.1255, FLORIDA STATUTES, THIS DECISION SHALL BE BINDING ON THE PARTIES UNLESS A COMPLAINT FOR TRIAL DE NOVO IS FILED BY AN ADVERSELY AFFECTED PARTY IN A COURT OF COMPETENT JURISDICTION IN THE CIRCUIT IN WHICH THE CONDOMINIUM IS LOCATED WITHIN 30 DAYS OF THE DATE OF MAILING OF THIS ORDER. THIS FINAL ORDER DOES NOT CONSTITUTE FINAL AGENCY ACTION AND IS NOT APPEALABLE TO THE DISTRICT COURTS OF APPEAL. ATTORNEY S FEES As provided by s. 718.1255, F.S., the prevailing party in this proceeding is entitled to have the other party pay its reasonable costs and attorney s fees. Rule 6
61B-45.048, F.A.C., requires that a party seeking an award of costs and attorney s fees must file a motion seeking the award not later than 45 days after rendition of this final order. The motion must be actually received by the Division within this 45-day period and must conform to the requirements of rule 61B-45.048, F.A.C. The filing of an appeal of this order does not toll the time for the filing of a motion seeking prevailing party costs and attorney s fees. CERTIFICATE OF MAILING I hereby certify that a true and correct copy of the foregoing was mailed by U.S. mail, postage prepaid, this 14 th day of October 2002, to: Timothy F. Pickles, Esq. 1970 Michigan Ave Bldg. C Cocoa, FL 32923-6007 Attorney of Petitioner Francis H. Morrell 5800 N. Banana River Blvd. #218 Cape Canaveral, FL 32920 Respondent Richard M. Coln, Arbitrator 7