ACCESS BY THE MANAGER
This article will not address the issues of the manager’s response to the denial of access or obtaining access when denied.
To state the obvious, the manager, as well as anyone else, can enter the rental at any time with the consent of the resident. This is based on the well known legal principle that someone with the lawful right of possession can invite another onto the property. Florida Statutes confirm the manager’s immediate right of access when the resident so consents.
The Landlord/Tenant Act provides for the manager’s right of access to the rental. The manager can expand upon that statutory right of access by well drafted lease provisions. If the lease provision is unreasonable, it runs the risk of being set aside as contrary to the statute or unconscionable. Enumerating specific reasons for entry has the advantage of avoiding arguments on entry for those purposes, but it has the disadvantage of generating arguments when an unlisted purpose arises. If the manager foresees the need to enter for a particular purpose, it is a good practice to list that reason specifically in the lease, without limiting the general right to enter. Some enumerated reasons for access are: estimating repair or refurbishing costs, doing repairs, pest control, preventive maintenance, such as filter changes or testing or replacing smoke-detector batteries, conducting inspections, preventing waste of utilities, installing, reconnecting, or removing security devices, showing the residence to prospective purchasers or residents, and removing hazardous materials.
Consent of the Resident
Florida Statutes 83.53 provides that the manager may enter the rental “with the consent of the resident” for the purposes “to inspect the premises; make necessary or agreed repairs, decorations, alterations, or improvements; supply agreed services; or exhibit the dwelling unit to prospective or actual purchasers, mortgagees, residents, workers, or contractors.” The most common method of gaining access is obtaining consent of the resident, whether it be for inspections, services, repairs, or showings. In response to a phone call or email, the resident approves the entry into the rental. If the resident’s approval is over the phone, the manager should make a note in the resident’s file of the authorization, including time, date and initials of the staff member who spoke to the resident. In cases when a resident disputes his oral approval, a manager should secure future approvals in writing or follow the statutory notice provisions.
The statute is silent on whether the resident’s consent can be implied. Managers, or their repair personnel or vendors, have been known to knock, and when no one answers, enter without any prior notice to the resident. The basis for this access is the “implied” consent of the resident allowing entry in response to the resident’s request for repair, or the lease obligation to provide periodic service or maintenance. A manager’s reliance on implied consent may be more reasonable when it is in response to a request for maintenance or repair. A manager’s reliance on implied consent may be unreasonable when service or maintenance is conducted that is infrequent and likely unexpected by the resident, such as unannounced service of the smoke alarms or air conditioner. In the middle ground are expected services like pest control; a better argument can be made that implied consent is given for those services which occur on a predictable schedule.
Managers should include a provision in their lease confirming that such access is deemed to be with the consent of the resident, unless the resident indicates otherwise in writing to the manager. Even then, managers rely on implied consent at their own risk. Since the statute doesn’t explicitly provide for implied consent, and the common definition of consent would be a verbal or written authorization from the resident, a judge may not be inclined to expand the meaning of consent.
FS 83.53 provides that the manager may enter the rental “upon reasonable notice to the resident and at a reasonable time for the purpose of repair of the premises.” Note that this is access for repair only. Reasonable notice for repair purposes is “notice given at least 12 hours prior to the entry”. Reasonable time for repair is “between the hours of 7:30 a.m. and 8:00 p.m.” Outside of consent, the most common method to gain access for repair is by posting on the door a notice to enter the next day. Although the statute provides that 12 hours is reasonable notice, the 12 hour reasonable time window for access makes same day notice and access totally impractical for non-emergency repairs.
Because the statute provides for a 12-hour notice and 7:30-8:00 time for repairs, these have become the safe harbor as reasonable notice and time for all notices and entries. If the entry is for something that a reasonable person (read here “a judge”) would think needs more notice, then more notice should be given. While a day’s notice may be sufficient for repair of the sink faucet drip, more notice would be reasonable for carpet replacement, when the resident would be required to clear a room or rooms of everything but furniture. Managers are reminded that the preferred method of entry in all situations is a mutually satisfactory time and date with the resident.
Emergency and Protection or Preservation
Florida Statutes 83.53 provides that the manager may enter the rental “at any time for the protection or preservation of the premises.” Additionally, the statute provides that the manager may enter the rental premises without notice “in case of emergency.” The fact that the statute provides separately for access in an emergency and for access to protect and preserve means that they are not always the same thing.
The common understanding of “emergency” is a set of circumstances demanding immediate attention, but there is clearly a subjective element as to whether an emergency exists. In most instances the need to protect or preserve will constitute an emergency. However, if the manager finds herself in a situation in which the resident argues that it was not an “emergency”, and that the manager unlawfully entered, the manager may be able to rely on the broader “protect or preserve” justification. Consider the situation in which the manager can hear a dog howling in the apartment, and the neighbors are upset with good reason. The howling has been going on since the previous evening. The dog’s owner hasn’t been seen, and the manager has been unable to reach the resident. Posting a 24-hour notice to enter could mean another night and day of howling. There may be a serious problem in the apartment, causing the incessant howling. At the very least, the dog hasn’t been out of the apartment to relieve itself. The manager will have a good argument that the situation required her to give entry to the police or animal control to protect and preserve, regardless of whether a true emergency existed.
The manager should not abuse the right to enter by claiming an emergency or the need to protect or preserve. Some sense of urgency should exist before immediate entry is obtained under the justification of protecting and preserving the premises, such as dealing with rotting food left in a refrigerator with no power, or feces left on the flooring. The manager should have a credible belief that a serious and immediate danger to the health or safety of someone exists, or that a real potential for significant damage or destruction to property exists. The danger can be to other residents, guests, the manager’s personnel, vendors, the general public or even the resident himself, or the property of any of them. The manager should remember that his actions may be reviewed by a judge, who can differentiate between good faith access and sham excuses to enter an uncooperative resident’s home. The appropriate response to a denial of access is a Seven Day Notice of Noncompliance with Opportunity to Cure, not a contrived emergency.
An unwarranted entry into a rental by the manager, his staff or vendors can have serious repercussions and should not be taken lightly. Should the resident appear, the entering individual can find himself being interviewed by the police based on the resident’s claim of trespass, theft or worse. Should the resident be home, the risk of violence is real in a state where shooting someone in the belief that they are entering your home without authorization happens. The resident can claim a breach of the lease and seek termination of the lease and/or damages. When a manager needs entry and is unsure of the guidelines, he should call his attorney
- The Curable Noncompliance Examined PART 1
- THE CURABLE NONCOMPLIANCE EXAMINED PART 2
- THE WRIT OF POSSESSION – WHAT IT IS
- THE WRIT OF POSSESSION AND THE FULL UNIT
- WORK ORDER COMPANY POLICY AND THE LAW