Most governing documents allow the trust to gain access to an owner’s unit to deal with both emergency and non-emergency situations. So, the first step is
If you are dealing with a
non-emergency situation that doesn’t require immediate access – there is
evidence of a slow leak behind the unit’s walls, for example, or as part of a
communitywide pest treatment program – you should first send a written notice
to the owner explaining why and when access is required.
How much notice you give should depend
on the situation. It needs to be reasonable. Most documents require at least
forty-eight hours advance notice, which would be reasonable to repair a slow
leak, for example. But you should give more notice for something like pest
treatment when possible.
Most governing documents afford owners
at least fourteen days to comply with a demand from the board to make a repair
within a unit, and access may be needed to verify the work was done. If
the owner objects, the association’s attorney should send a demand letter
noting that the governing documents allow access, explaining that the
association will seek a court order, if necessary, and noting also that the
owner will have to pay any legal expenses the association incurs. Once you’ve
sent the required notice, you can enter after the notice expires, but you
should do so only after verifying that the owner is not present, and there is
always some risk of liability when entering a unit.
If the owner is present and refuses to
open the door, walk away. You should not enter without permission. This is the
point at which you should obtain a court order, which courts will generally
approve, especially if something in the unit is harming or otherwise affecting
other units or common areas. The order you seek should be detailed, specifying
why you need to enter the unit, when you will do so, who will be present, and
what will be done. The order should also authorize a follow-up inspection to
verify that the condition requiring access has been remedied.
Whenever you are entering a unit when
an owner is not present, it is always best to have a third party with you such
as a health inspector, police officer or a security guard, if possible, to
attest, that nothing was broken or stolen while you were there.
In an emergency when immediate access
is required (water is gushing or smoke is seeping from under the door) and the
owner isn’t home or can’t be reached, the Nike slogan applies – “Just do it.” Take whatever
reasonable steps are necessary to get inside. Use a master key, if you have
one, or break the lock. The fire department may be willing to do that for you.
If not, we advise clients to have a police officer on hand to provide help, if
you need it, and, again, to verify that you didn’t steal or damage anything
while you were inside. Also remember that if locks are damaged, the unit must
be left in a locked and secure condition.
Defining what constitutes an emergency can sometimes be complicated. Sometimes it will be a judgment call based on the information you have, and certainly speaking to other residents or family members of the owner may help assess the situation.
Chris is a senior associate in the Braintree
form of Marcus Errico Emmer & Brooks P.C.
He has 20 years of experience litigating in Massachusetts and Washington
state courts. He has represented condominiums, homeowners’ associations,
property management companies, developers, contractors, real estate agents,
architects, and professional engineers in a wide range of cases in state and
federal court. Chris can be contacted by
email at cmatheson@meeb.com.
