Right of Access – Abandoned Condominium Units in Florida
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A Florida condominium association believes a unit is abandoned and is worried about the condition of the unit. The association also wants to collect assessments or rent but there is a superior lienholder, like a first mortgage on the condominium unit. Section 718.111(5), Florida Statutes, provides Florida condominium associations some authority to inspect, maintain, and even lease the abandoned condominium unit.
The first step in determining whether an association can seek relief or any of the remedies of Section 718.111(5), Florida Statutes, is a determination of whether the unit is considered abandoned under the statute. As statutorily defined, there are two instances where a unit is deemed abandoned: (1) where the unit is subject to a foreclosure action and no tenant has been present for four (4) continuous weeks; or, (2) where no tenant has been present for two (2) consecutive months, and the association is unable to contact the unit owner. Fla. Stat. § 718.111(5)(b)(1).
The significance in the definitions of an abandoned condominium unit is the time difference, and the circumstances. If there is a foreclosure action pending, the association must confirm that there has been no tenant residing in the unit for four (4) consecutive weeks. However, the timeline is extend to two (2) consecutive months where the unit is otherwise not in a pending foreclosure action. If an association believes a unit to be abandoned, it would be wise to begin documenting the vacancy of the unit and to maintain consistent records for the requisite time period. This documentation could be as simple as the maintenance crew taking notes as they pass the unit on a daily basis or if the unit has an assigned parking spot, noting the length of time that the parking spot remains empty. While these methods are not determinative of whether the unit is vacant, they may be helpful in determining whether the unit is indeed vacant.
Once the unit is deemed abandoned, the association cannot just barge in and do as they please. There must be at least a two (2) day notice provided to the owner at the owner’s last known address. Fla. Stat. § 718.111(5)(b)(2). This notice is waived if there is an emergency that the association must attend to immediately. Once the two days pass, the association may enter the unit for any of the following reasons: (1) to inspect the unit and adjoining common elements; (2) to make repairs to the unit or common elements serving the unit; (3) to perform mold remediation is mold is present; (4) to turn on the utilities, as necessary; or (5) to otherwise maintain, preserve, or protect the unit and adjoining common elements. Far too often, associations are unaware of the conditions of abandoned units and are unaware of the presence of mold, especially in Florida with the presence of moisture and humidity. Additionally, there may be an issue in an abandoned unit that is causing damage to another unit. For these circumstances, the association can follow the notice requirements and enter the abandoned unit.
One huge concern with respect to entering an abandoned unit and performing any repairs is the cost. If there is a non-paying unit that now requires money to be put into it to restore it to a habitable nature, the unit may appear to be a money pit. However, the association may charge the unit owner for any expense incurred pursuant to its entry, inspection, and any repairs made thereto. Fla. Stat. § 718.111(5)(b)(3). Even more importantly, these expenses may be assessed the same as an assessment and the association may use its lien authority to collect the expenses. Id. The expenses incurred because of an abandoned unit are treated very differently from fines incurred by a unit owner because fines cannot be the basis of a lien.
Finally, not only can an association recover the expenses incurred as a result of the abandoned unit, but the association may also petition a court to appoint a receiver to lease the unit and collect rent thereto. Fla. Stat. § 718.111(5)(b)(4). Leasing the abandoned condominium unit may be very favorable to an association and may provide for a expedited collection of money to offset the past-due assessments and any other fees incurred. The authority and remedies provided by Section 718.111(5), Florida Statutes, are often underused by, but exceptionally beneficial to, Florida condominium associations.