A state appeals court on Wednesday revived a lawsuit for a chemically sensitive Tamarac woman in a dispute with her condominium association over access to her unit for pesticide treatments.
An attorney for the condo association said the Fourth District Court of Appeal decision will hamper the ability of associations to conduct preventative maintenance.
Joyce Small has been arguing with the Devon Condominium B Association Inc. for five years. A resident since 1989, she didn’t initially receive pest control services. When pest control was offered, she accepted until 2005 when she was diagnosed with a breathing disorder and advised by her doctor to avoid chemical pesticides.
From 2005 to 2009, she asked the association not to treat her unit and used an alternative pest control. But in 2009, the association demanded access to perform pest control. She refused and was forced into arbitration.
The arbitrator ruled against her, and she sued in Broward Circuit Court. Judge Carol Phillips ruled in favor of the association’s motion to dismiss Small’s lawsuit on the condition that monthly access involve the use of a chemical-free pesticide.
Both sides claimed to have prevailed and asked for attorney fees. The association said it won because it gained access. Small said she won because the arbitration order was altered to require nontoxic chemicals.
Phillips sided with the association.
Soon after, the association was back, asking for a contempt order and more attorney fees because Small wasn’t admitting the association’s exterminator. Small introduced an expert who said the spray being used was harmful to her and in any case her unit had no insects.
Fourth District Justice Melanie May noted Small claimed she complied with the final judgment by hiring her own exterminator and providing the association with documentation of service. The association, however, insisted on going into the condo and inspecting the work.
The trial court ordered Small to let the association in and apply a particular spray. Otherwise, a sheriff’s deputy would force his way in “at the owner’s expense.” She also was billed $2,958 by the court for the association’s legal expenses.
“The saga continued when the association moved for an enforcement order and additional attorney’s fees because the owner failed to submit an affidavit of compliance,” May wrote.
Phillips enforced the contempt order without a hearing. The court allowed the association access, with a little help from a locksmith and a deputy, and Small was billed another $765 in fees and costs.
On appeal, the Fourth District focused on the “necessary” and “reasonable” conditions in state law governing condo association rights.
Small lived without pest control services for years, and there was no evidence of a pest problem in 2009, May noted.
“There was a genuine issue of material fact as to the necessity of the association’s actions,” she said. “And, considering the owner’s health risks, there was also a genuine issue of material fact about the reasonableness of the association’s actions.”
The Fourth District reversed the summary judgment and the attorney fees. But it let stand the contempt and enforcement orders.
Fourth District Judges Carole Taylor and Alan O. Forst concurred.
Association attorney Paul Milberg of Katzman Garfinkel & Berger in Margate said Small “fought tooth and nail” but lost at every phase until now.
“The key to the decision is what is necessary maintenance. The court is saying preventative maintenance is not necessary maintenance. That’s the issue I’m concerned about,” Milberg said. “The only way you can show it’s necessary is if there’s an infestation already, so everyone has to suffer. It makes no sense when we have condos where people are living right on top of each other sharing walls and ceilings.”
He said it appears the Fourth District now expects the trial court to hold an evidentiary hearing to show what’s necessary.
“This is basically saying you have to react to something. It has to be an existing problem that you’re going to fix,” Milberg said. “If I was in a condo, I wouldn’t want to wait until my neighbor has ants and roaches crawling all over everything.”
Small is representing herself. Boca Raton attorney Robin Bresky of the Law Offices of Robin Bresky prepared Small’s appellate brief, then withdrew from the case.