Abandoned Unit Becoming a Nuisance?
Foreclosures are at an unprecedented level in Florida resulting in many units standing vacant for extended periods, often without electricity to run the air conditioner. In Florida’s generally hot and humid climate, a closed unit without air circulation may lead to the proliferation of mold. Condominium Association Boards often ask if they may restore the power to the unit.
It would be the rare set of condominium documents which specifically addresses this issue. However, in a condominium setting, Section 718.111(5), Florida Statutes, permits the Association the irrevocable right of access to a unit for “maintenance, repair, or replacement of any common elements or of any portion of a unit to be maintained by the association pursuant to the declaration or as necessary to prevent damage to the common elements or to a unit or units.”
If mold proliferates in a unit damage could result not only to that unit, but to adjoining units and the common elements. The statutory right of entry does not specifically deal with restoring electricity to keep the air circulating. However, it allows the association the ability to enter a unit and take the actions necessary to prevent damage to the condominium property. As one of the simplest ways to prevent mold is to remove the moisture from the air by restoring electricity and running the air conditioner the condominium association board may arguably take this step.
The problem has been the restoration of power. Becker & Poliakoff has worked with Florida Power and Light to determine a standard operating procedure for such restoration of power. The basic steps are: 1) setting up a master account in the Association’s name; 2) when the power is disconnected the Association must contact Florida Power and Light to restore the power in the Association’s name using the funds in the master account; and 3) contact FP&L to expedite the restoration of power. Your community association attorney can assist you with contact numbers and further details to ensure the most current information.
Please note that the foregoing is only for Florida Power and Light customers and may not apply to customers of other power companies throughout the State of Florida.
We are often asked whether the Association can recover the cost of restoring power to the unit. It is unlikely that these costs can be recovered from the foreclosed unit owner, especially if the property is worth less than the amount of the first mortgage on the unit. There is a possibility (not a guarantee) of recovering these costs if the bank or other third party has received Certificate of Title to the unit and refuses to turn on the power. This is something that must be evaluated on a case-by-case basis with your community association attorney. However, the Board has a fiduciary duty to the remaining unit owners and it is less expensive to pay a small electric bill to keep the air circulating and protect the condominium property than it is to pay thousands of dollars to remediate a unit once it turns black with mold and threatens the rest of the property.
Mark D. Friedman, Esq. is a senior attorney at the law firm of Becker & Poliakoff, P.A. This article originally appeared in the Firm’s Community Update magazine. Mr. Friedman may be contacted at CondoLaw@becker-poliakoff.com.