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.
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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