PROBLEM SOLVED - ACCESSING A UNIT
The manager needs to inspect a unit, but the owner can’t be reached or refuses to open the door
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 to review the association’s documents to make sure they provide this authority. The Massachusetts condominium statute specifically authorizes boards to enter owners’ units “for the maintenance, repair, or replacement” of common areas or “for making emergency repairs… necessary to prevent damage to the common areas and facilities or to another unit or units,” so if the documents are silent, boards can rely on the authority provided by the law.
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.
If you would like more information regarding accessing a unit and/or handling an enforcement related issue please contact Attorney Christopher Matheson.