STATE OF FLORIDA DEPARTMENT OF BUSINESS AND PROFESSIONAL REGULATION DIVISION OF FLORIDA CONDOMINIUMS, TIMESHARES AND MOBILE HOMES

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1 STATE OF FLORIDA DEPARTMENT OF BUSINESS AND PROFESSIONAL REGULATION DIVISION OF FLORIDA CONDOMINIUMS, TIMESHARES AND MOBILE HOMES IN RE: PETITION FOR ARBITRATION CHATEAU DE SEVILLE CONDOMINIUM ASSOCIATION, INC., Petitioner, v. Case No DANIEL SCHWINDT, Respondent. / ORDER VACATING DEFAULT AND SUMMARY FINAL ORDER Order Vacating Default Respondent was apparently served in this matter on December 6, 2012, as the U.S Postal Service returned proof of receipt of a certified package, containing the petition and the order requiring answer, signed by a person identified as Daniel Schwindt on that date. Respondent failed to timely file an answer, motion, or other communication with the office of the arbitrator. For Respondent s apparent failure to comply with the order requiring answer and in accordance with the arbitration rules of procedure, a default was entered against Respondent on January 3, On January 11, 2013, Respondent, through counsel, filed a response claiming that Respondent had refused the certified package sent by the Division. The motion also stated that Respondent was in discussion with the attorney representing Petitioner and believed that the dispute was being settled. The response to the entry of default requested that the default be vacated and attached an answer. 1

2 There is a strong preference for lawsuits to be determined on the merits, and courts should liberally set aside defaults under appropriate circumstances. Geer v. Jacobsen, 880 So. 2d 717, 720 (Fla. 2d DCA, 2004), citing Marshall Davis, Inc. v. Incapco, Inc., 558 So. 2d 206 (Fla. 2d DCA 1990). The undersigned finds that Respondent has provided a sufficient explanation for why an answer was not timely filed. Thus, the default entered against Respondent on January 3, 2013 is hereby VACATED and Respondent s answer shall be deemed as filed on January 11, Summary Final Order Statement of the Issue Whether, pursuant to Chapter 718, Florida Statutes, Respondent is required to provide access to his unit to allow repair and replacement of common element pipes. Relevant Procedural History On November 26, 2012, Chateau de Seville Condominium Association, lnc. ( Association ) filed a petition for non-binding arbitration naming Daniel Schwindt as Respondent. An Order Requiring Answer was entered on December 3, Respondent filed an answer on January 11, This order is entered based upon the pleadings and attachments filed in this case. Findings of Fact 1. Chateau de Seville Condominium Association, lnc. is the legal entity responsible for the maintenance and operation of Chateau de Seville, a Condominium. 2. Respondent Daniel Schwindt is the owner of Unit 201 of Chateau de Seville and a member of the Association. 2

3 3. The Association has commenced a project to repair and replace pipes throughout the condominium. One of the problems identified is water intrusion from Respondent s unit to the unit located below his unit. 4. After the Association s agents made several requests for access, the Association's attorney made a written request to access the unit for the repair work on October 17, The Association requests as relief that Respondent provide access to his unit for the repair and replacement of the pipes. Additionally, the Association requests that Respondent be required, to vacate the Unit for the duration of the pipe replacement if the Association s vendors determine that the Respondent must vacate the Unit. 5. In his answer, Respondent admits that he required the Association to provide him the scope of repairs in writing and assurance of the financial liability of the repairs before he would grant access. 6. In the Answer, Respondent has requested the following as what he labels as Alternative Relief : 1. A specific scope of repairs to be completed and who is responsible for specific repairs in Unit 210 [sic] together with an estimated time line for completion. 2. Assurance from the Association that all costs of repair will be the expense of the Association, and identification of repairs, if any, that would be the liability of Respondent. 3. That existing uncompleted repairs be finalized prior to or at the time of additional repairs. Conclusions of Law The Division has jurisdiction over this matter pursuant to section , Florida Statutes. Rule 61B , Florida Administrative Code, requires entry of a 3

4 Summary Final Order when no disputed issues of material fact have been raised by the pleadings. The authority of an Association to enter a condominium unit without the owner's permission is based upon Section (5), Florida Statutes, which provides: (5) RIGHT OF ACCESS TO UNITS. The association has the irrevocable right of access to each unit during reasonable hours, when necessary for the maintenance, repair, or replacement of any common elements or of any portion of a unit to be maintained by the association pursuant to the declaration or as necessary to prevent damage to common elements or to a unit or units. The interest of Respondent to protect his property behind the locked door of his unit must yield to the need for the Association to protect condominium property. The Declaration put Respondent on notice that condominium property also lies behind the locked door to his unit, including walls, pipes, wires, conduits and utility lines. It is a basic principle of condominium law that, by choosing to live in a condominium, individual unit owners give up certain freedoms and accept certain restrictions upon rights which could be expected in separate, privately-owned property. Woodside Village Condo. Ass n, Inc. v. Jahren, 806 So. 2d 452 (Fla. 2002); Hidden Harbour Estates, Inc. v. Norman, 309 So. 2d 180 (Fla. 4th DCA 1975). The statute provides two broad purposes for access: for maintenance or to prevent damage. Cypress Isle at the Polo Club Condo. Ass n. Inc. v. Shelton, Arb Case No (July 22, 1998). Use of the word irrevocable emphasizes the legislative intent that the right of access cannot be limited by governing documents of a condominium or by a negotiated condition in the sale of units. Access will be allowed even when a unit owner has given 4

5 a written warning that the association should not enter a unit. See Hidgon v. Seaspray Condo. Ass n, Inc., Arb. Case No , Final Order (March 24, 1998). A key may be required because the right of access is for the protection of all units within a building and the owner of one unit may not be available to give permission at the time of an emergency. Costa Bella Association, Inc. v. Scuteri, Arb. Case No , Final Order (June 7, 2002). A common type of emergency occurs when a plumbing leak in one unit causes damage to another unit or to the common elements. See Oceanview Towers Condo. Ass n, Inc. v. Diaz, Arb. Case No , Final Order (January 3, 2007). In general, issues of the timing of the entry and notification to the owners are a function of good business judgment, prudence, and civility, which are concepts that resist further enunciation and definition in the case law. Higdon, supra. The fact that the statute, case law and governing documents do not attempt to define emergencies demonstrates the futility of an effort to specify unexpected events or foreseeable events happening at unexpected times. Respondent s defense that the Association has not met his conditions for entry is invalid. An impermissible denial of access occurs where a unit owner seeks to place conditions upon the association's access to his or her unit. Park Lake Towers Condo. Ass n, Inc. v. Halley, Arb. Case No , Amended Final Order on Motions for Attorney's Fees (January 28, 2004)(Where the association sought access to the respondent's unit in order to fix a plumbing assembly, and where the respondent directed that the association would only be permitted access upon providing proof of insurance and a valid building permit, the respondent was held to have denied access 5

6 to the unit.) Pursuant to Section (5), Florida Statutes, Respondent must allow the Association access to his unit to repair the common elements without any conditions. However, the Association s request that Respondent be ordered to vacate the unit must be denied because the arbitrator does not have jurisdiction to temporarily evict anyone from Respondent s unit pursuant to Section (1), Florida Statutes. Additionally, Respondent s request for Alternative Relief must be denied pursuant to Rule 61B (1), Florida Administrative Code, which states in pertinent part: The answer shall not include a request for relief (counterclaim) against the petitioner. Any claim or request for relief must be filed as a new petition following the procedure in Rule 61B , F.A.C. Based upon the foregoing, it is ORDERED: 1. The Default entered on January 2, 2013 is VACATED. 2. Respondent s answer is deemed as filed on January 11, On or before January 31, 2013, Respondent Daniel Schwindt shall provide access to Unit 201 of Chateau de Seville, to a contractor and/or maintenance employee designated by the Association to repair the common elements. 4. If Respondent does not take affirmative steps by January 31, 2013 to provide access, a contractor and/or maintenance employee of the Association may enter into Unit 201, without notice but at a reasonable time (between the hours of 8:00 am and 5:00 pm) to perform the necessary repairs to the common elements. 5. The Association s request that Respondent be ordered to vacate the unit is DENIED for lack of jurisdiction. The Association may seek relief in a court of competent jurisdiction. 6

7 6. Respondent s request for relief is DENIED. DONE AND ORDERED this 15th day of January, 2013, at Tallahassee, Leon County, Florida. Terri Leigh Jones, Arbitrator Department of Business and Professional Regulation Arbitration Section 1940 North Monroe Street Tallahassee, Florida Telephone (850) Facsimile (850) Trial de novo and Attorney s Fees This decision shall be binding on the parties unless a complaint for trial de novo is filed in accordance with section , Florida Statutes. As provided by section , Florida Statutes, the prevailing party in this proceeding is entitled to have the other party pay reasonable costs and attorney s fees. Any such request must be filed in accordance with Fla. Admin. Code R. 61B Certificate of Service I hereby certify that a true and correct copy of the foregoing final order has been sent by U.S. Mail and facsimile to the following persons on this 15th day of January, 2013: Shawn G. Brown, Esq. Lang & Brown, P.A. P.O. Box 7990 St. Petersburg, FL Fax: Attorney for Petitioner Lance Andrews, Esq th Street South St. Petersburg, FL Fax: Attorney for Respondent Terri Leigh Jones, Arbitrator 7