DENIAL OF ACCESS BY RESIDENT

 

You are in the process of making your periodic inspections of units; you have given written notice and find out that your key does not work in the door. Apparently the resident has changed the locks without your permission and has failed to give you the keys. In another situation, the resident has called in and requested that a repair be made in the unit. You send your maintenance staff over, and the resident refuses to let your staff in to make a repair, saying it is not a convenient time. Your resident requests a repair to be made, you call to schedule the repair, and the resident states that you can only send the maintenance staff in if the resident is home, which happens to be after 7:00 p.m. Do these scenarios happen? You bet. This article will address the situation in which the resident is playing the “denial of access game”

 

The Law On Access

 

Florida law specifically addresses access rights by the manager, and your lease agreement may further address the issue.

 

83.53 Manager's access to dwelling unit.—

 

1. The resident shall not unreasonably withhold consent to the manager to enter the dwelling unit from time to time in order 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.

 

2. The manager may enter the dwelling unit at any time for the protection or preservation of the premises. The manager may enter the dwelling unit upon reasonable notice to the resident and at a reasonable time for the purpose of repair of the premises. "Reasonable notice" for the purpose of repair is notice given at least 12 hours prior to the entry, and reasonable time for the purpose of repair shall be between the hours of 7:30 a.m. and 8:00 p.m. The manager may enter the dwelling unit when necessary for the further purposes set forth in subsection (1) under any of the following circumstances:

 

1. With the consent of the resident;

 

2. In case of emergency;

 

3. When the resident unreasonably withholds consent; or

 

4. If the resident is absent from the premises for a period of time equal to one-half the time for periodic rental payments. If the rent is current and the resident notifies the manager of an intended absence, then the manager may enter only with the consent of the resident or for the protection or preservation of the premises.

 

The Resident Lock Change

 

If the resident changes the locks on the premises, this may be in violation of the lease agreement, if there is a clause providing that the resident is forbidden to change the locks. The resident is not necessarily in violation of Florida law though, unless he fails to deny you access by virtue of this lock change. If it is determined that the resident has changed the locks and is in violation of the lease, he must be served a Seven Day Notice of Noncompliance with Opportunity to Cure. The unauthorized resident lock change really is the easy case and does not pose too many problems if the resident complies and gives you a key. There are many reasons why a resident may have changed the locks, and as long as the manager has access, this is usually not a real problem.

 

The Denial of Access “Game”

 

If your resident has requested a repair and then denies you or your maintenance staff access, or makes it unreasonably difficult or impossible to make repairs by telling you that she must be present, or requiring you to come after business hours, you must jump into action. Residents will use the request for repairs as a way to either set up a lease break scenario or put themselves into a rent withholding posture. If the resident ends up breaking the lease or withholding the rent with an eviction ensuing, the resident may try to claim that numerous requests for repairs went unmet. You may then need to establish to a judge that you were denied access. The resident will have a wonderful story of how numerous repair calls were made, work orders were turned in, and no one was ever sent to make the repair. You will be flabbergasted and tell the judge that you made several attempts, and eventually gave up as the resident was making it nearly impossible to get the repairs accomplished. Now you are at the mercy of the judge to either believe you or the resident, who may be able to lie more convincingly than you can tell the truth. This is bad position to be in.

 

Repair Requests and Strategy

 

The moment a repair request is made by the resident, it should be dealt with quickly. Can you simply go to a unit and make a repair after a phone call from the resident? Yes, but it is a bit risky if the resident did not expect you to come when you did, and you and your maintenance staff can be accused of theft or trespass when the resident is surprised. If you go to the unit without any notice and the resident is home, the resident may deny you access, and it could be looked on as legitimate by a judge. Your lease or resident handbook should clearly lay out the procedures for repair requests, but as we know, many managers fail to do so.

 

Once the repair request is made, if it is something that needs immediate attention, the resident should be called and told that you or your maintenance staff will be out within a specific time window. The resident may have a pet that needs to be secured, and it is just a matter of courtesy to coordinate something like this with the resident. At this point in time, the resident may begin to deny you access. If the resident insists that she be home for the repair, this should be accommodated if possible. However, if the repair need is of an emergency nature, do the repair without accommodating this request, if need be. If the resident demands that you come after normal business hours, this may be construed as a denial of access, especially if your resident handbook or lease clearly states the hours that repairs will be made. The resident may verbally agree to you coming to the premise for the repair, and upon arrival the resident informs you that you cannot make the repair at that time. This is when you must jump into action.

 

The Resident Refuses You Access

 

If the resident has already stated when you can or cannot come to make a repair, or has made it clear that your staff or repair person cannot come during regular business hours, you must immediately begin to document the steps you are taking to get the repair accomplished and the roadblocks that the resident is putting up. All phone calls, work orders, responses and witnesses need to be documented for later use. If you go out to make the repair and the resident flat out denies you access, you will preferably have a witness and should document this carefully. At the same time, inform the resident when you will be back using a written notice. If the resident refuses access again, attempt to have the resident sign your notice proving that she refused the repair. You can also consider giving a Seven Day Notice of Noncompliance with Opportunity to Cure at this time based upon the resident unreasonably denying access after have been provided notice of repair. Now it is time to try again. You have given the resident a WRITTEN notice of when you will be returning to effectuate the repair; honor the notice. If the resident again refuses you access, document everything all over again. If you don't expect cooperation by the resident, always have a witness with you to show that the resident has refused the repair. You see, you are now part of the game, and you want to give yourself the best chance to win this game if you end up in court. Everything must be done in writing, and every denial of access must be documented.

How far do you go?

You may wonder how may times you must try to make a repair and be denied; there is no firm number. Ask your attorney if you have enough proof that you could potentially present into court to prove your attempts and the resident’s actions. Remember that your word in court will not go too far in this game. Your clear documentation and persistence at attempting a repair, and the resident’s thwarting of same, will be the key to success in winning an eviction in which the rent was withheld, or attempting to collect rent from a resident who has breached the lease by complaining about repairs and vacating prior to lease end.