Association has right to perform pest control

March 03, 2018

Question: I have been living in my condo for two and a half years. Our association hires an outside company to spray for bugs on the first Thursday of each month, by entering the individual units accompanied by the maintenance man (who has the keys for each unit). I am sensitive/allergic to the “nontoxic” substance they spray, which induces choking and coughing. My breathing pathways shut down, including my Eustachian tubes. Therefore, I instruct the maintenance man to have the sprayer apply the substance only to my front door frame and the perimeter of my two front windows, which are closed and locked at the time of the application. If I am at home during the application, I still suffer the reaction described above — so you can imagine the effect if they actually sprayed inside my condo.

Recently, when I was out of town, the condo president went around with the sprayer technician and maintenance man and ordered the tech to spray inside my unit, over the protest of the maintenance man who told the president about my condition. Fortunately, I keep a clean condo, professionally sanitized each month, and I don’t even do any cooking in my unit, therefore I don’t have bugs. Because I travel each month, if my trip coincides with a scheduled spray application, I coordinate with the maintenance man and instruct him to let the tech in that month if I am not to return for at least a couple days after the application. The point is, my place does get sprayed occasionally, just not every month, and certainly not when I am home and will be living and sleeping in a toxic environment.

Now, here’s the twist. The real reason the condo president was touring with the spray tech was to covertly gain access to each unit to inspect for clothes dryer violations. I imagine that, in itself, is a violation for him to enter condos without the owner’s permission.

First, is it not unlawful for anyone to enter a condo without the owner’s permission unless there is a dire emergency, and second, for my health and well-being, do I have the right to occasionally refuse the spraying provided I keep my unit clean, professionally sanitized, and coordinate with the maintenance man to time the internal spray applications to coincide with my absence? — A.S.

Answer: Pursuant to the Condominium Act, and likely also pursuant to your declaration, the condominium association has an “irrevocable right” to access each unit during reasonable hours, when necessary for the repair, maintenance or replacement of any common elements or to prevent damage to the common elements or another unit.

Further, many governing documents expressly state the association is responsible for pest control, but even if yours are silent, I think an excellent argument can be made that pest control is an essential part of maintaining the common elements, particularly where pests often reside in and travel through the common element walls between units. You can imagine what a problem this becomes in hoarding situations, where individual units can quickly become infested with pests, and those pests spread throughout the building.

Yes, it was a little tricky for the president to also be inspecting units for rules violations, but I would not expect an arbitrator or court to take issue with that, given the irrevocable right of access, and also given the fact the president could easily argue any dryer violations would pose a fire risk (and thus the inspection was for the purpose of preventing damage to the units).

I think your best argument, in avoiding the mandatory monthly spraying, would relate to your sensitivity to the chemicals used by the pest control company. You may recall from other columns that the Fair Housing Act provides that a housing provider, such as a condominium, is obligated to make reasonable accommodations to rules and regulations when necessary to afford a resident the full use and enjoyment of the premises.

To the extent that your doctor would certify that your breathing condition constitutes a disability, the association would arguably be obligated to accommodate that disability by allowing you to change the spraying schedule or avoid spraying on certain months. Pest control is a form of herd immunity, such as we see with immunizations. Certain people cannot be immunized for health reasons, and their ability to resist disease relies on the fact that other healthy members of society have been immunized against those diseases. Similarly, you as a person who cannot have your unit “immunized” against pests, will partly rely on the spraying of other units to prevent infestation of your own home (along with the fact that you maintain fastidious personal habits and do allow infrequent spraying as well).