BUSTED...For Not Paying Common Expenses

In light of events that transpired at a recent eviction, it is prudent to clarify property management’s role at an eviction pursuant to an Action for Possession commenced by a condominium corporation to collect common expense arrears secured under a Condominium Lien.

To understand the difficulty in predicting whether a particular unit may be dangerous and/or conducting illegal activity, both my office and property management were surprised when the Sheriff entered a unit only to find an illegal marijuana grow-op, in addition to a number of guns, knives, other dangerous weapons and tens of thousands of dollars in cash. There is an added risk with marijuana grow-ops concerning the likelihood that the unit may be booby trapped by the occupiers in order to protect their “investment/inventory”.

It is of the utmost importance that a property manager understands his/her role in an eviction so that he/she does not take any steps that may endanger his/her safety and/or well being. Once a Condominium Lien has been registered against the title to a unit and a subsequent Action for Possession has been commenced due to the continued non-payment of the Condominium Lien, it will often lead to the condominium corporation moving for Judgment and taking steps to enforce its Judgment and Condominium Lien. This typically involves having a Writ of Possession issued and filed with the local Sheriff for an eviction of all those residing in the unit. This is a necessary step for the condominium corporation to obtain a Certificate of Vacant Possession and be in a position to sell the unit in order to satisfy its Condominium Lien. 

In most jurisdictions, once an eviction has been requested, the local Sheriff should notify property management and/or counsel for the condominium corporation twenty-four (24) hours prior to the time that eviction will take place. Property management should have a locksmith ready as it will be necessary to change the locks once the unit has been turned over to the condominium corporation, and a Certificate of Vacant Possession is provided.

On the date of the eviction, the primary role of the property manager is to accompany the Sheriff to the unit and to assist the Sheriff in identifying the specific unit which is required to have the eviction. Sometimes, and as with this most recent case, unit owners tend to do things in order to create an obstacle and/or hinder the Sheriff’s ability to identify the unit that requires an eviction. In this case, the unit owner decided to take down numbers that were attached to the front door of the unit which served to identify its suite number. It is here that the assistance of property management is required, as property management can help the Sheriff in correctly identifying the specific unit that requires the eviction.

Once the local Sheriff knows the unit that requires the eviction, property management is free to excuse themselves and/or retreat to a secure location while the eviction is occurring and need only to, eventually, accept the Certificate of Vacant Possession on behalf of the condominium corporation. At no point during the eviction is property management required to enter the unit and, if doing so, it is done solely at their own risk.

It is important to note that in the event the local Sheriff discovers illegal activity and/or unit owners acting in a violent and/or aggressive manner, the local Sheriff is adequately trained to address those situations and may contact the local Police.

In this most recent case, in view of the number of weapons and the marijuana grow-op operation discovered, the local Sheriff contacted the Police without hesitation. Once the Police arrived they conducted a thorough investigation and laid charges against the individuals who occupied the unit. It is of the utmost importance that the property manager does not hinder the Police in performing their investigation. For example, nothing in the unit should be touched or disturbed as items may be required to be collected as evidence against individuals where charges were issued. 

Prior to any eviction, if the property manager is concerned for his/her safety and/or the safety of others, arrangements can be made to have a Police Officer attend the eviction with the Sherriff. Given that the condominium corporation is taking steps to enforce its Condominium Lien, the cost of hiring a Police Office to accompany the Sheriff to the unit should reasonably be covered under its Condominium Lien as it is a cost incurred in the attempted collection of same.

Since no one has a crystal ball and can determine, prior to entering the unit, whether it is dangerous or not, the condominium corporation can consider taking steps to deter such illegal activity from occurring in units. 

Illegal activities such as marijuana grow-ops require significant investment and infrastructure in order to facilitate the illegal activity. By implementing, for example, a smoke alarm inspection of each unit once or twice a year, the condominium corporation is indirectly taking measures to deter perpetrators of illegal activity from carrying on their activities in their unit. 

Furthermore, by performing semi-annual fire inspections of each unit, the condominium corporation itself is upholding its duties to protect its own assets and the investment of each unit owner.      

All of the information contained in this article is of a general nature for informational purposes only, and is not intended to represent the definitive opinion of the firm of Elia Associates on any particular matter. Although every effort is made to ensure that the information contained in this newsletter is accurate and up-to-date, the reader should not act upon it without obtaining appropriate professional advice and assistance.

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