Oct. 24, 2021, 7:00 a.m. ET
Dear Poliakoffs,
First, does the board of directors, rental manager or property manager have the right to enter our condominium unit without our permission?
Second, are owners allowed to have a security camera at the front or back of their entryway if the outside of the building is considered “common space?” Do the laws change if you rent your condo?
Signed, P.C.
Dear P.C.,
The Condominium Act (along with the vast majority of condominium declarations) provides that “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 the common elements or to a unit.” Notice that this is a broadly defined right. There is no obligation to notify the owner or tenant or ask permission (and no, it does not make a difference if the unit is rented), and the right of access would cover everything from searching for leaks (probably the most common reason to access a unit), to investigating smoke smells, to doing insurance inspections for common element windows and sliding glass doors. This right of entry is irrevocable and there is nothing that a unit owner can do to prohibit an association from entering a unit for these specified purposes (and, potentially, for whatever other purposes might be referenced in the declaration of condominium). Further, the term “association” is quite broad and would reasonably include any agent of the association. Note that, even though there is no obligation to notify the owner or tenant, that is certainly the best practice when possible (the association isn’t going to allow a major flood to continue unabated simply because they are having difficulty contacting the resident, but in most situations the association can at least provide some advance notice).
If a unit owner refuses to allow entry, the association could get an arbitrator or court to issue an order requiring the owner to allow access, in which case the owner would be responsible for the association’s costs and fees (as well as any damages that may be directly attributable to their failure to allow access). Note also that the Cooperative Act has a very similar rule with slightly different wording (referring to maintaining the structural components of the building or any plumbing, mechanical or electrical elements). Now, I certainly have seen associations take advantage of this rule—for example, by inspecting a unit under a pretense of protecting the common elements, but in fact for the purpose of looking for rules violations. It’s a very narrow line. But most of the time such entry is entirely proper and legitimate.
In an HOA (in contrast) there is no general statutory rule allowing the board to enter your lot. But, many declarations of covenants grant the association the right to access the lot not only to inspect for violations, but also to perform remedial maintenance when a homeowner has failed to do so. I cannot specifically recall a declaration that provides for a right to enter the home, itself, but I can see such a rule existing where it is a townhome association and where there are townhome elements that must be maintained by the association (such as roofs or party (shared) walls).
As for security cameras, that will come directly down to the language of the condominium declaration. In the vast majority of instances, the declaration will prohibit owners from modifying the common elements or exterior of the units (including the doors)—whether outright, or without board permission. Many condominiums do allow doorbell security cameras, for example, but few allow other types of security cameras, and there would be no general right to install such a camera, absent the right to do so in a declaration of condominium. In fact, a declaration could arguably prohibit the installation of cameras on limited common elements or the unit, itself. So on this one, you need to look to your declaration of condominium and rules and regulations to see whether security cameras are permitted. There’s nothing that would prevent the association from allowing them, however, other than possible privacy issues if a camera was pointing directly into another unit.
Ryan Poliakoff, a partner at Backer Aboud Poliakoff & Foelster, LLP, is a Board Certified Specialist in condominium and planned development law. This column is dedicated to the memory of Gary Poliakoff, pioneer of the community association legal industry, tireless advocate, and author of treatises, books and hundreds of articles. Ryan Poliakoff and Gary Poliakoff are co-authors of New Neighborhoods—The Consumer’s Guide to Condominium, Co-Op and HOA Living. Email your questions to condocolumn@gmail.com. Please be sure to include your location.
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