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People can't just barge in on the pretense of an `emergency'

July 01, 2007|Stephen Glassman and Donie Vanitzian | Special to The Times

Question: Most of the owners in my development are over 65 years old and have limited physical capabilities. The board insists that owners provide management with duplicate unit keys for "emergencies" and has threatened us with fines if we don't comply. Some of us do not want to hand our privacy over to people we don't know. We have no idea who, if anyone, will be safeguarding our keys. There's a huge turnover in sales here and our board members come and go as owners buy and sell.

Our maintenance man seems to take it upon himself to open doors any time he wants. We never know when he'll open a door, but when he does he always says, "This is an emergency, there's been a complaint so I have to come in." The board won't give us anything in writing assuring us that the use of entry won't be abused.

Can we do anything about this?

Answer: Just because the board asks for or demands your keys doesn't mean you have to provide them.

Emergency or not, an involuntary entry into a private residence is not part of an association's duties to its titleholders. And it denies homeowners one of their basic rights -- in this case, privacy.

Even if the Declaration of Covenants, Conditions and Restrictions grants the association a "right of entry" and the documents spell out exactly what that entails, entry would only be allowed in those circumstances detailed in the documents, and notice or permission is still required. Those entries would require legal justification or they could subject the board and the association to damages for a violation of the individual homeowner's right to privacy.

If the right of entry exists in the governing documents, it is usually granted only in the event of an actual emergency, but even that must be spelled out. Alleging that someone complained or merely asserted it was an "emergency" does not make it one.

An emergency is an unforeseen event likely to result in immediate harm to people or property. There is no basis for a non-emergency entry without the consent of the homeowner. To merely walk in and declare an emergency is a violation of a homeowner's right to privacy.

Maintenance employees are not permitted to enter a unit, even in an emergency, without first attempting to ascertain if someone is inside. They must provide adequate notice to the unit owner and occupants before entry.

An association needs to set policies in line with the governing documents, as to when and under what circumstances entry would be allowed for an emergency. Without any authority to enter detailed in those documents, the board and its agents can't enter without permission.

Homeowners can and should deny entry and can sue for trespass, seeking damages from both the individual entering the unit and the association.

Here are some guidelines that apply to every homeowner, senior citizen or not:

* Ask for the names and identification cards of anyone who the board declares may require entry and make certain that only those on the list actually enter.

* Confirm the reason for maintenance personnel to enter beforehand.

* Always call the board when someone claiming to be from the association demands entry. If no board member is available, deny entry unless and until it can be established that there is a real emergency.

* Always keep a camera handy and photograph workers, board members, management company personnel and every association-related worker who enters your property whether or not their entry is announced.

If fines are threatened or the reason for entry is predicated on "accusations," you have a right to see and obtain a copy of the complaint before permitting entry.

Even if the board provides assurances regarding the standard of care it intends to exercise regarding owners' keys, those assurances must be written in a legally enforceable document with the association accepting liability for any resulting damage arising from an entry.

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Send questions or comments to P.O. Box 11843, Marina del Rey, CA 90295 or e-mail noexit@mindspring.com.

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