Many of us have had experience with unit owners who refuse to provide access to their unit for pest control. We have dealt with unit owners who raise issues with respect to the type of pesticide that is being used. In certain circumstances, condominium corporations may have to accommodate some requests.
An interesting recent lawsuit in Florida resulted in a decision that seems to suggest that unless the association could show that there is currently an infestation in the suite, the court would not compel the unit owner to have her unit treated with pest control spray.
Joyce Small, the unit owner who commenced the court proceeding, was diagnosed with a breathing disorder and advised by her doctor to avoid chemical pesticides. From 2005 to 2009, the association did not treat the unit because of Ms. Small’s insistence that the pesticides could not be used. In 2009 the association finally demanded access to her suite to perform pest control. When she refused, the association submitted the matter to arbitration. The arbitrator ruled against the unit owner. Ms. Small decided to take the matter to court and although her claim was dismissed, the court ordered that the association use chemical free pesticide for Ms. Small’s suite.
However, when it came time for the treatment to be done, Ms. Small wouldn’t permit the exterminator to access her unit. The association then had to go back to court for a contempt order. The association won once again.
Here’s where it gets interesting: Joyce Small appealed to the Fourth District (a higher level court in Florida). The judge found that since there was no evidence of a pest control problem in 2009 and “considering the owner’s health risks, there was also a genuine issue of material fact about the reasonableness of the association’s actions.” They reversed the lower court’s judgement which meant no pest control treatment for Ms. Small.
The court focused on what maintenance items are necessary and didn’t consider the preventative nature of pest control. This could mean that in the State of Florida lots of creepy crawlies may have to appear before a unit owner (with health concerns) could be compelled to have pest control services performed.
Click here for an online article about this case.
