Occasionally, a leader will be faced with a situation where the obligations of the job require the executive to disregard ordinary protocol, declare an emergency, and take action. That action would usually require certain procedural steps, but under these emergency conditions, some of those are often circumvented or ignored altogether.
I am speaking, of course, of a condominium board faced with circumstances that create a danger to safety or property.
Why? What did you think I meant?
Under ordinary circumstances, a condominium association usually has certain rights to enter into a condominium unit – often they take the form of an easement for the purpose of maintenance or repair that the condominium association is required to make. However, those rights must be carefully balanced against the rights of the unit owner whose property is being entered. Occasionally, a situation may arise where the condominium board believes it is an emergency: they must act quickly and decisively to protect the condominium building, or even to avoid dangers to human life. Fires, large pipe bursts, and sewage backups may all create such a situation; experienced community association professionals and board members can probably name several others. The condominium should be mindful of a few things when considering using its emergency powers and deciding what constitutes an emergency.
The Law
The first thing a board should consider when contemplating an emergency entry into a unit is what law applies. In Maryland, for instance, the relevant statute is the Maryland Condominium Act, Section 11-125(e):
(e) Right of entry to make repairs. —
(1) The council of unit owners or its authorized designee shall have an irrevocable right and an easement to enter units to investigate damage or make repairs when the investigation or repairs reasonably appear necessary for public safety or to prevent damage to other portions of the condominium.
(2) Except in cases involving manifest danger to public safety or property, the council of unit owners shall make a reasonable effort to give notice to the owner of any unit to be entered for the purpose of investigation or repair.
(3) If damage is inflicted on the common elements or any unit through which access is taken, the council of unit owners is liable for the prompt repair.
(4) An entry by the council of unit owners for the purposes specified in this subsection may not be considered a trespass
This is a typical statute and it sets out the framework for the Board’s decision-making process. First, the board has the right to enter the unit for certain specified purposes. Second, the Board should give reasonable notice to the owner (or resident) of their intent to enter – unless there is a danger to safety or property. This named exception is really what we want to try to identify. Third, if the entry causes damage (say a door lock is broken or a section of drywall has to be removed), the condominium must promptly repair the damage. Fourth and finally, said entry by the condominium association may not be considered a trespass.
Consider again what we talked about here: anyone can file a lawsuit. So if the condominium enters the property of a unit owner, that owner may well file a lawsuit. Again, the goal of working with your attorney is to minimize the likelihood of that suit, and if it is filed, to maximize and accelerate the likelihood that it is dismissed. Here, the statute gives the condominium association explicit authority to enter the unit and legally defines this action as not constituting a trespass. This is a very useful provision when facing this particular set of facts.
Aside from the relevant statute, the other way to know “the law” that governs a given situation is to see what the appellate courts in your jurisdiction have said. To this end, the president was correct when he cavalierly described what will take place next: a legal challenge will happen, and will then be appealed as far as possible. While that situation is largely unprecedented, the use of emergency powers to enter a condominium may not be. Consider what your appellate courts have done in response to such situations in the past when determining your best course of action.
(By the way, Trump’s description and cavalier attitude toward the impending lawsuit and appeals are good to note for condominium boards. Two main differences between the president and your board are (a) the president is not worried about who will foot the bill for the legal fees on that appeal; and (b) the president does not have to worry about how to pay the judgment imposed if the challenge is successful. A condominium board probably has to do both).
The Governing Documents
Once you know the law that applies, the condominium board must always determine what its governing documents say. Typically for a condominium these rights and obligations will be found in the Bylaws. Additionally, the Board will want to review the CC&Rs/Declaration/Master Deed, as well as any policies or resolutions adopted on the subject. However, when looking at those documents, it is important to keep in mind what the hierarchy is in such a situation: the relevant law cannot be trumped or altered by the governing documents unless it specifically allows for it. Often times a statute will say “unless the governing documents provide otherwise…” When considering how to move forward in a situation like this, condominium boards would be wise to identify the relevant law and the document provisions, and then get an opinion or interpretation from their legal counsel.
Giving Notice
You may have observed that the relevant Maryland statutes provides: “Except in cases involving manifest danger to public safety or property, the council of unit owners shall make a reasonable effort to give notice to the owner of any unit to be entered for the purpose of investigation or repair.” This is generally good practice regardless of where you are and what the circumstances are. Think of it practically for a moment: the condominium board wants to enter into a specific condominium unit in order to access a portion of the common elements that it is obligated to repair. If you want to pass through someone’s living space, even though you may have the statutory right to do it, it is just common decency to let them know in advance. The board should tell the owner when and for how long the entry is intended to take place, and where possible, work with the owner to make it a mutually agreeable time.
The Circumstances
Now the Board has determined what the relevant law is, and it has identified the provisions of the governing documents that apply. The general policy of the board is that they give reasonable advanced notice to affected owners before entering into the units to make repairs. But now they have a real problem. Urgent even. Immediate attempts to contact the owner have been unsuccessful, and the board and manager are seriously concerned that there might be imminent danger. The question stands: What constitutes an emergency?
This is where judgment starts to enter into the equation. Once again using the language of the Maryland statute, consider whether the situation presents “manifest danger to public safety or property.” Some common examples of emergency include a fire, or a pipe burst, or a sewage backup. Even these can sometimes lead to a judgment call: if you smell the faint odor of smoke in the hallway, should you smash the door down, or could that simply be the remnant of a smoker from the day before? If you hear water dripping slowly, is it an emergency, or could the bathtub just be left on? Is a dog frantically barking an emergency, or is the dog just high-strung?
When making this decision, boards would be well-served to consider how their decision will look objectively when viewed by a judge later on. Did you act reasonably and in good faith? Is there any history of animosity or other issues with the affected owner? What attempts did you make to contact the owner before moving forward? Is there any evidence of fraud or bad faith? Similarly, the board will be thankful later on if it documents each of the steps taken, the factors considered, and the votes cast to move forward with entry into the unit. By being able to recreate the situation, showing that it was confronted with a very serious threat (such as a fire or burst pipe flooding the building), the condominium will be much more secure and protected in its decision.
Above all, when deciding what constitutes an emergency, only invoke those emergency powers when you absolutely need to.
And I will leave discussion of that other emergency to a higher authority.