THE VIRGINIAN-PILOT
Copyright (c) 1995, Landmark Communications, Inc.
DATE: Saturday, July 22, 1995 TAG: 9507200303
SECTION: REAL ESTATE WEEKLY PAGE: 10 EDITION: FINAL
COLUMN: Common Ground
SOURCE: G. Robert Kirkland and Michael A. Inman
LENGTH: Medium: 72 lines
I need some information regarding a problem we are having in getting our condominium treated for cockroaches. The building itself is four stories with six units.
The first floor is a common foyer and storage area. The rest of the floors have two units partially separated by a common, central stairway. The board of directors arranged to have the building professionally treated after owners from each floor reported having roaches.
Roaches have also been regularly seen in the stairway, storage areas and along the outside foundation. The pest control company will not guarantee their work unless all private and common areas are treated. All owners but one have agreed to cooperate with the treatment plan.
The owner who refuses to cooperate reports no bugs in his unit and has refused to allow access to the pest contractor. Our condo declaration states that, ``The association shall have an easement through the unit and the common elements for inspection, maintenance, repair and replacements of the unit and common elements. Would the cockroach problem fall within the scope of this provision? What action would you recommend to get the holdout owner to cooperate?
This question has no doubt come up in other condominiums where access has been denied by one or more owners for no apparent reason. The same issue could arise in the context where heating and air-conditioning systems affect more than one unit or where there are plumbing problems that affect a group of units in a building.
Generally, condo documents do include a clause such as the one you quoted from your documents. It does appear to us that your documents grant an easement to the association to enter the units for the purpose of maintenance and repairs. We feel confident that a court would consider pest control to be maintenance.
We suggest that you have your association attorney write a letter to the owner explaining the legal rights afforded to the association under the documents and making demand that the unit be made accessible within 10 days or two weeks.
If that does not gain the cooperation of the unit owner, then there are two further steps you may take. If you can gain access at a time that the unit owner is not present, you haves the right to enter by gaining access in any reasonable way, including the use of a locksmith.
If the unit owner rarely leaves the unit and makes it virtually impossible to gain access during his absence, then you will need to obtain an injunctive order from the appropriate court.
If the matter is urgent and could result in irreparable harm to the common areas or to another unit owner, then you should be able to obtain a temporary injunction allowing you immediate access. If it is a more routine matter, you may not be able to obtain quick access through a court order; so it may take a couple of months to be heard on the court's regular docket.
As an additional note, we perceive that you may be using chemicals to spray in the unit owner premises. If that is the case, there is a potential danger of side effects, which could affect the health of the unit owner or tenant, so you must give notice of the intended treatment to the resident before applying the chemical.
If you fail to do so and there is injury sustained by the resident or any guest, you may subject the association to liability for any negative health impact. MEMO: G. Robert Kirkland is president of a Virginia Beach property management
consulting firm, and attorney Michael A. Inman specialize in Virginia
community association issues. Send comments and questions to them at
P.O. Box 446, Virginia Beach, Va. 23458. To submit questions by phone,
call 430-3617; by fax: 431-0410. by CNB