Condo Media - October 2019 - 62

The Region

RHODE ISLAND

Association's
Right to Access
Troubled Units
What's all the Buzz About?
[by Mary-Joy Howes, Esq.]

Consider this scenario: A unit in the
association appears to be abandoned.
There is, however, a consistent, loud
buzzing noise coming from the unit,
as well as hundreds of flies coming in
and out of the unit through tears in
the screens. The board has received
complaints from the adjoining unit
owners. Attempts to reach the owner
of the "buzzing" unit have been
unsuccessful. What can the board
do, if anything?
DUTY, RESPONSIBILITY
AND POWER
Many boards think that their hands
are tied in situations when the unit
owner is unresponsive, absent, or
simply uncooperative. The Rhode
Island Condominium Act (R.I.
Gen. Laws 34-36.1 et al) (the "Act")
and generally all condominium
declarations, do, however, give boards
the power, and arguably the duty, to
intervene.
Pursuant to the Act at Section 3.07(a):
"... The association is responsible for
maintenance, repair, and replacement
of the common elements, and each unit
owner is responsible for maintenance,
repair, and replacement of his or her
unit. Each unit owner shall afford to the
association and the other unit owners,
and to their agents or employees, access
through his or her unit reasonably

62

CONDOMEDIA October 2019

necessary for those purposes. If damage
is inflicted on the common elements,
or on any unit through which access is
taken, the unit owner responsible for
the damage, or the association if it is
responsible, is liable for the prompt
repair thereof."
The governing documents of almost
all Rhode Island associations have
provisions that mirror Section
3.07 of the Act. Additionally, most
associations also have specific rules
prohibiting nuisance (interfering with
the comfort and enjoyment of the other
unit owners) and mandating cleanliness
(keeping your unit in a good state
of preservation).
The provisions on access generally
require that a reasonable amount of
notice be given prior to access, and that
the access be at an hour considered to
be reasonable under the circumstances.
Also, said provisions often allow for
access without notice in the case of
an emergency.
Section 3.02 of the Act also entitles
the association to "[E]xercise any
other powers necessary and proper
for the governance and operation
of the association." This "catch all"
provision charges the board with
enforcing the rules and regulations of
the condominium, and gives them the
ability to take any and all reasonable
and necessary steps to enforce those
rules and regulations, which includes

ensuring the maintenance repair and
replacement of the common and limited
common elements.
STEPS, COSTS AND REMEDY
Generally, the first step (absent an
emergency situation) is to send a
demand for correction of the violation
if it is a situation to be remedied by the
unit owner. In the case of a situation
to be remedied by the association (e.g.
the common and/or limited common
elements) the association will send
a demand for access to inspect the
unit. In cases of uncooperative unit
owners, a police officer or other peace
officer should be present. When
pests or animals are involved, the
proper professionals such as animal
control or pest control should also
be in attendance. If necessary, the
building inspector should be notified
in cases where the premises may be
unsafe for human habitation. The
association should have a locksmith
present to gain access where necessary.
Notwithstanding the association's right
to access units, there are times where
a court order for access may become
necessary. This can happen when the
local police department is unwilling to
honor the access rights in the statute
and declaration as superior to other
rights of the owner, tenant or occupant.
Finally, the cost, including legal fees,
that are incurred in gaining access to a
Condo Media - October 2019

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