Law Offices of Robin Bresky Wins Reversal of Summary Judgment in Homeowner’s Dispute Over Condo Association’s Use of Chemical Pesticides**
Law Offices of Robin Bresky Wins Reversal of Summary Judgment in Homeowner’s Dispute Over Condo Association’s Use of Chemical Pesticides
Small v. Devon Condominium B Ass’n, Inc., 4D10-2302, 4D10-5243, 4D11-247, and 4D11-4110
The Law Offices of Robin Bresky recently won reversal of a trial court’s order granting summary judgment for a condominium association against a unit owner who objected to the association’s use of pesticides in her unit. The dispute began when the elderly unit owner objected to the condominium association’s use of chemical pesticides in her unit on the grounds that she suffered from a breathing disorder. The association eventually demanded access to the unit to spray the pesticide.
In lower tribunal proceedings that the Fourth DCA characterized as a “saga,” the association first went to arbitration and obtained a default order allowing it monthly access to the unit to apply the pesticide. The unit owner sought de novo review in the trial court. The association argued that it had an irrevocable statutory right to enter the unit to perform necessary maintenance. The trial court granted summary judgment allowing the association to enter the unit to apply chemical-free pesticide provided by the owner or the association, or allowing the owner to have the service performed at her own expense. The trial court later entered several enforcement, contempt, and attorney’s fee orders against the unit owner.
On appeal, Jonathan Mann and Robin Bresky argued* on behalf of the unit owner that the trial court erred in granting summary judgment because a factual issue existed as to whether the association’s demand to enter the unit was reasonable and necessary. The Fourth DCA agreed. The Fourth DCA held that a genuine issue of material fact existed as to whether the association’s actions were reasonable and necessary, and the association’s bare claim of necessity was insufficient. The Fourth DCA reversed the summary judgment in favor of the association and reversed the attorney’s fee order entered pursuant to that judgment.**
* Our firm filed the Initial Brief and withdrew prior to the court’s decision.
** The mandate in this appeal has not yet issued.