When Can an Association Enter, and What Are the Limits?

When Can an Association Enter, and What Are the Limits?

by Michael J. Gelfand, ESQ. / Published July 2014


When does a community’s maintenance needs supersede a unit owner’s claim for individual treatment? What is the threshold necessary to force a unit owner to submit to the association’s demand to work inside a unit? Will a court actually enforce a Florida association’s claimed right to enter a unit? A Florida appellate court recently addressed these questions when considering a Florida condominium association’s right to access a unit to perform preventative pest control spraying. In Small v. Devon Condominium B Association, Inc., Nos. 4D10-2302, 4D10-5243, 4D11-247, 4D11-4119 (Fla. 4th DCA, April 2, 2014), the owner lived in her unit since 1989. Sometime thereafter, the association offered unit owners pest control services, which Small initially accepted.

The owner was diagnosed with a breathing disorder; thus, the association stopped spraying her unit from 2005–2009. During this period, the owner, on her own, used an alternative form of pest control. However, in 2009, the association demanded access to her unit to perform pest control services. The owner refused access. Being a Florida condominium association, the dispute over the association’s claimed right to require the owner to provide the association access to the unit for pest control work proceeded first to mandatory pre-suit arbitration. The owner did not answer the association’s petition, which resulted in a default, preventing the owner from contesting the issues in arbitration, and eventually an arbitration order allowing the association monthly access to spray the unit. Proving one of Yogi Berra’s famous quotes that “It ain’t over until it’s over,” the owner responded to the arbitration order by filing a complaint in circuit court to stop the association’s entry to which the association filed a counterclaim. To support her position, the owner provided her physician’s affidavit, which stated that “it would be deleterious to her health to be exposed to any chemicals.” The trial court entered final summary judgment for the association permitting access for application of “non-toxic, chemical-free pesticides.”

The entry of judgment was still not the end. The owner continued to refuse to allow the association to spray her unit. The trial court thus found the owner in contempt and awarded the association attorney’s fees. The owner appealed the trial court’s decision. Reversing the summary judgment, the Florida appellate court found that there was a genuine issue of material fact as to whether the association acted reasonably in accessing the unit. The court relied on the Condominium Act, which in Section 718.111(5) Fla. Stat. (2009) provides:

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. (Emphasis added).

Elucidating a two-part test, the court explained that for the association to enter the unit over the owner’s objection, the purpose for the entry must be (1) within the condominium association’s authority and (2) reasonable. “Given that the owner lived in the unit for several years without pest service provided by the association, and there was no evidence of a pest problem in 2009, there was a genuine issue of material fact as to the necessity of the association’s actions” the court stated. Further, given the owner’s health problems, there was also a question about the reasonableness of the association’s actions.

If an association is faced with a similar situation where an owner refuses access for the association’s efforts, the access must be necessary. In Florida, unlike many northern states, pest control services have an increased importance, especially to keep pests out of neighboring units. However, associations must plan in advance, especially with the seemingly increase in owner health issues. Thus, in addition to just considering if an association has general authority to undertake pest control, an association may want to consider a special plan of action for owners who are anticipated to raise health objections.


Officers and directors of associations often sign checks on their association’s behalf. Some associations have very little cash. Other associations have many accounts, sometimes not realizing, which have small balances.

What happens if a Florida association’s check bounces? Can the signer be hit with Florida statutory damages for signing a bad check equal to triple the check amount? A recent Florida appellate court decision held that a company was liable for worthless checks issued on its behalf by its president, but cleared the company’s president. In Big Bang Miami Entertainment, LLC v. Moumina, 39 Fla. L. Weekly D647 (Fla. 3rd DCA, March 26, 2014), Big Bang executed a promissory note personally guaranteed by its president. Three checks bearing the name and address of the account holder, Big Bang Miami Entertainment, LLC were signed by the company’s president and delivered for the total amount due under the note. However, nowhere on the checks was it noted that the person signing was signing as president.

After the checks bounced, the noteholder sued both the company and its president seeking treble damages for issuing worthless checks. Perhaps recognizing how strong Florida’s bad check laws are, the noteholder did not even seek to enforce the note or enforce the personal guarantee, but just moved forward because of the bad check. The defendants did not respond to the complaint, thus the trial court entered a default judgment.

Likely providing all Florida corporate officers and directors a sigh of relief, the Florida appellate court affirmed the judgment, but just as to the company. The judgment was reversed as to the president.The appellate court explained that when it is the “obvious intent” that an individual is acting as the representative of another, and thus signs an instrument on behalf of the entity represented, but fails to indicate that he or she is signing in a representative capacity, the represented entity is still legally bound. As for the president, the signer, the court found that he did not bind himself by his signature on the checks.

How can you start to show that necessary “obvious intent” to avoid liability? The first step is to ensure that your association’s checks are imprinted with the association’s proper corporate name. Many businesses, including associations, fail to do so thereby exposing their officers and directors to unnecessary risk!