Opening the Door Contractor Access Balances Privacy and Association Needs

Opening the Door

 It’s Murphy’s Law that when a homeowner is on vacation or away for the day, the unexpected  happens. A pipe bursts and water starts dripping through the ceiling of the  unit below. It’s essential that the management firm gets into the unit before more damage is  done. They contact a plumber, grab the key and enter the unit. Of course, the  primary objective is to stop the leak—but there’s always a chance the contractor can damage the property or something can go  awry by simply having the contractor in the home.  

 Letting a contractor onto a property and into units always brings risks, so an  association must make sure that it is protected should something go wrong.  However, this doesn’t just pertain to emergencies. For example, workers also need access while  conducting maintenance/repair operations that involve every unit, such as duct  cleaning, chimney sweeping or washing machine hose upgrades.  

 Several years ago, one Massachusetts property was rewiring its cable system. To  complete the job, the local cable company needed access to the property’s common attic, located above the units. When the contractor went into the attic  and began to walk around, he missed the floor joist, slipped and fell through  the ceiling, crashing into the living room of the unit below. The startled  owner, who was home at the time, was sitting on the couch when the accident  happened.  

 “It is my experience that there are no hard and fast, boilerplate rules guiding  these communities about contractors on the property,” says Ronald J. Barba, Esq., at the law firm of Bender, Anderson & Barba, in Hamden, Connecticut. He points to the recent changes in the  Connecticut Common Interest Ownership Act (effective in 2010) which called for  maintenance standards, and other similar formalized written policies, to be  adopted by associations.  

 “The statutory enactments of 2010 have compelled associations and their attorneys  to draft and implement standardized policies, but such has not been the case  when dealing with contractor/vendor access issues,” he says. “It may just be a matter of time. For now, however, such policies are quite ad hoc and specific to individual  communities.”  

 An Emergency — Or Not?

 When it comes to emergencies, however, Barba urges managers and residents to  familiarize themselves with the condominium documents, which should address  such contingencies as needing to gain access in emergency situations. “Provisions are almost invariably inserted in the declaration or bylaws to  authorize the association’s access in emergencies such as water leaks and fire, etc.,” he says. “The documents contemplate the association’s right to enter the unit to mitigate losses without having to worry about  violating the owners’ rights.”  

 To manage his properties, Kevin Decker, president of Property Management, Inc.,  in Tyngsboro, Massachusetts, says that if he needs access to a unit, he has a  key from the owner and he provides them with fourteen days’ notice. “However, if it’s an emergency, we go in anyway,” he says.  

 Certain inspections also require access, whether the unit owner allows it or  not. “This is most important for inspections that are required by either the state or  the condo documents, including annual dryer vent, fire alarm or smoke alarm  inspections,” says Decker. If residents do not comply with access during required  inspections, Decker can gain access by contacting a locksmith.  

 “In Massachusetts, we are also able to turn the residents over to the local fire  department and, if we come back because the residents didn’t give us access, we’ll get the door open and bill back the costs to them. The costs are enforceable  through the association,” he says.  

 If a homeowner denies access during emergencies or required inspections, it  could result in fines or, in extreme cases, injunctive relief ordering access.  However, a homeowner has some rights to restrict access to their unit. “In non-emergency situations, unit owners have a right and enforceable  expectation of privacy,” says Barba. “That expectation, however, is not absolute, but subject to reasonable  regulations. It is permissible for associations to require reasonable access  for inspection purposes or for the purposes of effecting repairs or  maintenance.”  

 A quick Internet search will find several examples of legal cases where unit  owners denied access to the association and ended up in court. In the Florida  case of Hollywood Towers v. Hampton, a unit owner refused access through her  unit to repair the balcony. The unit owner said that the balcony, a common  element, could be repaired without going inside her unit. In court, the  engineer said the repair needed to be properly finished inside the unit. The  ultimate decision favored the association.  

 Before a contractor even steps on the property, management should make sure the  proper insurance is in place to financially protect the association, in case  something should go wrong.  

 “Any contractor that comes on the premises should supply the association with a  Certificate of Insurance, evidencing both General Liability (at least  $1,000,000 per occurrence) and Workers Compensation (statutory limits)  coverages,” says Jeff Grosser, vice president/partner, Rodman Insurance Agency, Inc. in  Needham, Massachusetts. “The certificate must name the association as Additional Insured. “  

 Grosser also says that depending on the nature of the work to be done,  additional liability protection in the form of an umbrella policy might be  required of the contractor. “But the exposure is any third-party bodily injury, for example, a painter’s ladder falls and injures a person, or property damage (i.e., electrician’s work causes a fire that damages the building) resulting from the services  provided by the contractor,” says Grosser.  

 For larger contracts, Barba says that associations should insist on performance  bonds from the contractor, a bond issued by an insurance company or a bank to  guarantee satisfactory completion of a project. “Such a requirement serves to identify contractors who are less reliable or  credit worthy,” he says. “A contractor unable to procure a performance bond may represent an unacceptable  risk to the association board.”  

 With a key to the unit, who is allowed into a home when the resident isn’t there? “Property management contracts can be tailored to require the manager to  supervise, or at least provide access to service providers,” says Barba. “As the association’s agent, the manager has a fiduciary duty to prevent loss where it is feasible  to do so.”  

 Decker says that in his company, either he or his other property manager is  present to assist and supervise the contractors.  

 Final Tip

 For Connecticut properties, Barba recommends that a board ensure its contractor  is registered as a home improvement contractor with the Connecticut Department  of Consumer Protection. “Connecticut general statutes require home improvement contractors to register  with the state before they can legally provide services to the public,” says Barba. “The Home Improvement Act, which requires all contracts to be in writing and  include specific provisions designed to inform the consumer about his or her  rights in the transaction, is strictly interpreted by the courts to protect  consumers from disreputable contractors.”  

 Barba says the Act serves as a guide, but the association should involve general  counsel before any contract is negotiated or executed. “Any deviation from the Act’s requirements is strictly enforced against contractors,” he says. “In addition to protections afforded by the Act, consumers (including common  interest communities) may have access to a guaranty fund to cover losses up to  $15,000 resulting from insolvent, registered contractors. The guaranty fund is  unavailable for dealings with unregistered contractors.” Because state laws vary, associations should talk with their attorneys when  planning any work that involves access to individual units.  

 “While owners may have to permit access from time to time, they are well within  their rights to expect to be safe in the property while doing so,” says Barba. “However, the occasional requirement of access doesn’t mean that owners should hand over keys to the property managers. Frankly, an  association should eschew policies that would invite abuse. Emphasis should  remain in respecting unit owner property rights.”  

 Making sure the contractors have the right insurance and creating a policy and  procedure that outlines what needs to be done when a contractor is on the  property is the best way to ensure that both the property and its residents are  protected.    

 Lisa Iannucci is a freelance writer and a frequent contributor to New England  Condominium.

 

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