Miami Herald Column: “Real Estate Counselor: Ruling in Dade Reminds Associations to Avoid Restricting Resident Access”

Siegfried Rivera
October 8, 2023


The firm’s latest Miami Herald column was authored by Christyne D. Santisteban and appears in today’s edition of the newspaper. The article, which is titled “Real Estate Counselor: Ruling in Dade Reminds Associations to Avoid Restricting Resident Access,” focuses on the takeaways for community associations from a recent Miami-Dade Circuit Court ruling on the importance of avoiding restrictions against residents’ use of common elements that are necessary for them to access their unit. Her article reads:

. . . The decision came in a lawsuit that was brought by Latkisha Mosley against the Majorca Isles II Condominium Association. Mosley had been residing as a tenant in the community located in Miami Gardens for over seven years when her most recent lease expired on Nov. 30, 2022. Mosley, who is currently battling cancer and has an active domestic violence protective order against a third party, subsequently continued her tenancy under a month-to-month lease, which is prohibited by the condominium association.

The entire community and her residence can only be accessed via the front entrance security gate, which residents access using a key fob or entry tag to open the gate designated for residents only. Guests must use the visitor gate, which requires them to insert their driver’s license into a reader and possibly also register with security through an automated call-box.
The court found that the association had a policy prohibiting month-to-month tenancies, and it would also automatically disable the key fob/tag access to the residents’ gate immediately upon lease expiration. As such, it automatically disabled Mosley’s resident gate access on Dec. 1, 2022.

In order to coerce her compliance with its lease renewal requirement and prohibition against month-to-month tenancies, the association forced her to use the visitor gate to access her residence. She alleged that, as a result of maintenance issues, she was regularly refused access or delayed in being allowed to enter.
The ruling states that the court took extensive testimony on a specific incident from May 19, 2023, when security refused to grant Mosley access via the visitor gate. She called the police, who responded and required the security personnel to open the gate.

Mosley’s lawsuit seeking injunctive and declaratory relief to reinstate her resident gate entry access is based on the argument that such access, including use of the resident gate, is a “common element needed to access the unit” as defined and regulated in Florida Statute 718.303(3)(a). It contends that by cutting off her resident gate access, the association unlawfully suspended her use of a common element needed to access her residence, and the plain language of the law does not permit for the visitor gate access scheme.
The association responded by arguing that Mosley was no longer a registered resident of the community by virtue of the lease expiration, and it is permitted to control security and regulate access to the property as well as to remove registered gate access. It also disputed that it had ever locked her out of the property through the visitor gate, either intentionally or unintentionally.

The statute in question states that condominium associations may suspend the rights to use common elements and association property for violations of provisions of their declarations, association bylaws, or reasonable rules. However, it goes on to state that such suspensions do not extend to “common elements needed to access the unit, utility services provided to the unit, parking spaces, or elevators.”

Given the plain language of the statute, the court concluded that the association’s restriction of Mosley’s resident gate access runs afoul of Florida law. It also concluded that, on at least one occasion, the association had intentionally or unintentionally locked her out through the visitor gate, thereby necessitating the court’s intervention.

Consequently, the court issued a temporary injunction requiring the association to reinstate Mosley’s resident gate access. It also found that her cancer condition and domestic violence protective order required her to have immediate and unrestricted access, so she would be exempt from the requirement of paying for a bond for the issuance of a temporary injunction.
The court’s temporary injunction ordered the association to immediately reactivate and reinstate her resident gate access key fob/tag, and it would be legally barred from further restricting or removing her access. . .

Christyne concludes her article by noting that this ruling should serve as an important reminder for all Florida community associations. She writes that state law expressly prohibits them from suspensions of the use of common elements that are necessary for residents to access their units, and lockouts are strongly disfavored under Florida law and by its courts. Christyne advises boards of directors and property management to avoid such restrictions and the potential legal liabilities they may bring.
Our firm salutes Christyne for sharing her insights into the takeaways from this ruling for Florida community associations with the readers of the Miami Herald.