Forbes Bender & Paolino P.C.

A Condominium Association has the Right to Enter a Unit

By Alexander D. DiSanti, Esq.

Introduction

In a popular movie series, Spider-Man, Uncle Ben, the surrogate father of Peter Parker, Spider-Man’s alter ego, says, “With great power comes great responsibility.”  This article will examine the rights of an association to enter a unit, in addition to the potential liabilities inherent in the exercise of that right.

While this article will focus on a condominium association’s right to enter a unit, the analysis generally applies to planned communities, as well.  Section 3307 of the Uniform Condominium Act, which has been adopted by the Commonwealth of Pennsylvania, provides, in pertinent part:

[T]he association is responsible for maintenance, repair and replacement of the common elements and each unit owner is responsible for maintenance, repair and replacement of his unit.  Each unit owner shall afford to the association and the other unit owners and to their agents or employees, access through his unit reasonably necessary for those purposes.

The statutory law of Pennsylvania provides the association with authority to enter a unit.  The governing documents of an association may provide additional detail, relating to, among other subjects, the exercise of the right to enter a unit, the obligation of a unit owner to provide keys to the unit to the association, notice requirements to the unit owner prior to entry and securing the unit afterward.  Accordingly, the governing documents of an association must be reviewed to fully understand these issues as they relate to a particular community.

Gaining Access in the Real World

While the law of Pennsylvania allows a condominium association the right to enter a unit, the association must demonstrate that entry into the unit was based on the association’s responsibility to maintain, repair or replace the common elements or a provision articulated in the association’s governing documents.  It may be necessary for an association to enter a unit to gain access to a problem in need of a solution.

An upper unit has a ruptured washing machine hose and water is leaking into a lower unit.  The lower unit owner is complaining to the property manager.  There is common space between the upper and lower units.  In addition, the lower unit is being damaged by the flow of water.  The source of the water flow must be stopped.  Another common example, with the same theme, involves a pipe servicing an upper unit leaking, causing water to flow into a lower unit and damage to the lower unit.

What does the association do?  Wait for the upper unit owner to come home, which would allow more water to flow and greater damage to occur, or deal with the problem independent of the owner.  The answer is simple.  The responsibility is clear, but the potential ramifications of the decision to proceed independently must be considered.

The right to access is a matter of state statute, court precedent and the governing documents of the association.  What is the procedure that will be followed in seeking entry?  Associations incur no liability by merely entering a unit in conformity with the law and governing documents.  However, liability may attach if, for example, contractors act inappropriately.  Criminal activity, such as theft of an item from the unit, and leaving the unit unsecured create problems and liability concerns.

The association may try to exercise the right to enter in an effort to determine whether the unit owner is complying with the rules and regulations of the association.  For example, there may be a no pet rule.  There is suspicion that a unit owner has a banned pet.  There may be smoking bans.  There have been complaints of smoke from a unit.  Is it wise for the association to use the right of entry in furtherance of a police function?  This depends on authority for the entry and the procedures used.

Absent emergency situations, before an association gains access to private property, notice of intent to enter should be communicated to the unit owner.  This notice should be in writing and specifically state why access is being requested.  The notice should also state the date and time the association intends to enter the unit.  Typically, the unit owner should be notified at least one week prior to the date of access.  (As with all of these issues, please be sure to consult the governing documents of the association to determine what may be required.)

The association should then act in compliance with the notice.  It is preferable to have the unit owner present.  However, this is not always possible.  Access to the unit may be gained by a key provided to a friend or neighbor of the unit owner.  The unit owner may offer the association a key to gain access.  This creates potential liability to the association.  Some commentators believe that, in the absence of an obligation of all unit owners to provide the association with a key, an association should avoid accepting a key from a unit owner.  One problem relates to who has access to the key once in the possession of the association.  What happens when someone abuses the situation and gains entry for unlawful purposes?   There are privacy considerations, as well.

Nevertheless, if an association agrees to accept a key from a unit owner on a temporary basis, written documentation in the form of a receipt should be utilized to memorialize the date and time that the key was delivered to the association representative and when the key was returned to the unit owner.  This written document should be signed by all concerned to avoid conflict.

If the association decides that it wants to have copies of keys to every unit and there is authority for this in the governing documents, there should be a written security policy to detail who has access to the keys and how the keys are secured.  Again, having a copy of keys to every unit is not a recommended policy to adopt.

What should the association do if the date of entry into the unit arrives and the unit owner is not at home or does not answer the door?  Assuming that the visit is not for an emergency, the association should provide a second notice to the unit owner with a later date and time.

What happens if the unit owner is again absent or fails to answer the door?  Pennsylvania law does not provide associations with the right to demand keys.  Some states do.  At this point, consideration of legal procedures to gain access is warranted.

Emergency Situations

In an emergency, an association should provide whatever notice it can to the unit owner, whether by email, cell phone or otherwise.  Records of the attempts to notify the unit owner must be maintained.

The association may be obligated to gain entry into a unit without the cooperation of the unit owner.  A true emergency situation may compel the association to use a method designed to cause as little harm to the unit as possible to gain entry.  This will obligate the association to properly secure the unit after the emergency repairs have been completed.

When the association gains access to a unit without the unit owner present, if the association does not have a key, a locksmith will need to be involved in the process.  This will be a cost item.  The cost should be borne ultimately by the unit owner.  It is recommended that at least two people be present when entry is gained.  One should be a member of the board of directors or a property manager.  Venders should be honest and law-abiding.  An association must always make security and the safety of all involved the highest priority.

Some associations notify the police in emergency situations when access to a unit is necessary.  Although not required, this is generally a good policy.

Once the repairs have been completed, if the unit owner has not been notified of the emergency, further attempts to contact the unit owner are recommended.  Again, these attempts should be documented.  It is prudent to leave a written note in the affected unit, detailing the emergency situation, the repairs made and contact information for the unit owner.  The unit owner will certainly be concerned when he returns.  Lines of communication must be open.

Conclusion

Entry into a unit by an association implicates a number of issues and concerns.  The association must make choices, both in terms of what specific provisions are contained within the governing documents and in the application of those provisions to the real world.  It is recommended that these specific provisions be reviewed periodically.  This may lead to changes in procedures and policies, either before or after these provisions become the framework for dealing with a specific incident.  As always, common sense and decency are the pillars of successful property management.

Alexander D. DiSanti, Esq., is an officer of Forbes Bender Paolino & DiSanti, P.C., a full service law firm with offices located in Delaware County (Media) and Chester County (West Chester), Pennsylvania.  Alex has been representing condominium and homeowner associations for over 25 years.  He has the highest lawyer rating given by LexisNexis Martindale-Hubbell of AV Preeminent.  Alex was selected for inclusion in Pennsylvania’s Legal Leaders Presenting Top Rated Lawyers for year 2013.  At the request of the National Business Institute, he has served as a faculty member and instructor of Legal Aspects of Condominium Development and Homeowners’ Associations, a legal education seminar for lawyers.  Alex can be reached at (610) 627-1700 or adisanti@fbpdlaw.com.  His website can be visited at www.fbpdlaw.com.