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Access or Excess? Where to Draw the Lines in Your Common Interest Community
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Minnesota Community Living May/June 2012

Access or Excess? Where to Draw the Lines in Your Common Interest Community

By Sarah B. Bennett, Esq. Thomsen & Nybeck, P.A.

Community associations frequently face the problem of deciding whether, and when, they may access an owner’s unit. Whether an association or its property manager may access a unit will depend on the terms of the association’s governing documents and whether the association is subject to Minnesota Statutes Chapter 515B, the Minnesota Common Interest Ownership Act (the "Act”).

When confronted with this issue, it is best to start with the governing documents (Articles of Incorporation, Bylaws, Declaration, and Rules and Regulations, and any amendments thereto) to determine if a provision applies to the present situation. The declaration typically provides for access to a unit upon advance reasonable notice to the owner/occupant. Or, in the event of an emergency, immediate access is authorized. What constitutes "reasonable notice”, or what form of notice must be provided, may not be defined within the declaration, however. To avoid any confusion, the Board should adopt additional rules and regulations that are not inconsistent with the terms of the declaration, which provide further clarification as what constitutes "reasonable notice” (i.e. 24 hours) and the methods by which notice may be provided (i.e. written or verbal notice, by email or letter, etc.).

If the governing documents do not shed any light as to whether the association may access a unit, then the Act will authorize the access if the association is subject to it. The Act provides:

The association shall have access through and into each unit for purposes of performing maintenance, repair or replacement for which the association may be responsible. The association and any public safety personnel shall also have access for purposes of abating or correcting any condition in the unit which violates any governmental law, ordinance or regulation, which may cause material damage to or jeopardize the safety of the common interest community, or which may cause a health or safety hazard for occupants of units.

Minnesota Statutes § 515B.3-107(b) (emphasis added). In the absence of similar language in the governing documents, the language in Section 515B.3-107(b) provides the authority for the association to access any unit to perform maintenance or to deter or correct existing violative conditions to prevent damage to the association property or which may endanger the health or safety of the members of the association.

It is impossible to list all possible scenarios in which access may be appropriate. An example of such a situation is where there may be a need to winterize a vacant unit. If an association is left with a vacant unit (due to foreclosure or abandonment of the unit) winterization may be prudent to prevent damage to other portions of the property. In a foreclosure situation, if the owner is no longer living in the unit and the redemption period has not expired, the association should first attempt to contact the unit owner to provide reasonable notice of its intent to access the unit to winterize it. If there have been good-faith, but unsuccessful efforts to contact the unit owner, the association has the authority to winterize the unit and assess the costs thereof against the unit if governed by the Act, or if the declaration authorizes the association to do so. Similarly, if the redemption period has expired and purchaser at the foreclosure sale failed to winterize the unit after reasonable efforts have been made to contact the purchaser, the association may access and winterize the unit and assess any reasonable costs incurred against the unit.

The question becomes harder to answer when the reason access is desired is to evaluate whether there is, in fact, a condition that may endanger other residents’ health or property. For example, the problem of hoarding has gotten more attention recently, and it can be a real threat to the safety of a common interest community. It can create a fire hazard and an impediment to escape that jeopardizes the owner himself, while the risk of a unit full of flammable materials that may fuel a blaze creates obvious danger for others. In other cases, perhaps an owner has been observed to behave erratically, or is reclusive, and there is concern about her competence to maintain safe behavior. But, can a community association enter a unit of a suspected hoarder to evaluate the potential threat, or can a high-rise condominium require owners to permit regular inspections even where there has been no report of a potential danger? Where there has been no report of an actual problem, there may be alternatives that help enhance the board’s credibility and influence in performing safety checks. For example, the association might enlist the assistance of the local fire official to perform an inspection for the presence of appropriate smoke and/or carbon monoxide detectors. While in the unit, the official can evaluate other conditions that may affect the safety of the unit or the occupants. This has an added benefit of allowing the board and management to stay out of the business of evaluating matters they are not trained to evaluate –such as fire safety and health concerns.

However, before accessing any unit, the association should review its governing documents to determine what provisions, if any, apply to the present situation and if the association is governed by the Act. Reasonable efforts to contact the owner of the unit should always be made and documented in writing prior to accessing any unit for any purpose, except in an emergency situation if the health and safety of the members of the association is threatened. In a non-emergency situation, if reasonable notice is provided and the unit owner prohibits the association or its representatives from entering the unit, the association should obtain a court order authorizing it to access the unit to avoid a claim by the owner against the association that the access was improper or caused injury to the owner or the owner’s property.

Note: The information in this article is provided solely as general information and not as legal advice. Your receipt, and even your use of this information, does not establish an attorney-client relationship. Readers are urged to speak with a qualified attorney focusing on community association law when making decisions regarding a specific legal issue.

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