Stand Your Ground

When Can You Use Nonlethal Force to Protect Your Personal Property?

By Michael J. Gelfand, Esq. / Published July 2024

Wherever you stand, you cannot contest that “Stand Your Ground” laws have proliferated, especially in Florida. These “SYG” laws are often in the news following the use of force, especially to defend against a prosecution.

     While the application of SYG laws in Florida community association governance have been a concern for quite some time, that concern has been abstract or theoretical until now.

     The abstract question has been, what happens when a Florida property manager or community association volunteer accesses your property without the occupant’s consent? What type of force is permitted to prevent their access? Is more than slamming a door permitted?

     As happens frequently, the abstract or theoretical has collided with reality. A recent Florida appellate court decision concerning a condominium association, which could have easily involved a homeowners’ association or a cooperative association, reminds all Florida community associations of the dangers that lurk when managers or volunteers enter a residence.

     A Florida appellate court recently ruled that a condominium unit owner may use a certain amount of force to prevent unlawful interference with her personal property. The facts in Paese v. State of Florida, 49 Fla. L. Weekly D 472 (Fla. 4th DCA, February 28, 2024), reflect that Paese was a resident of a high-rise condominium. One of the elevators opened into her unit with a key fob that provided her exclusive access.

     One day four men—the property manager, a local code inspector, and two other men—used a master key fob to ride the elevator to Paese’s unit. The elevator opened into the owner’s elevator foyer, considered to be a common element. The door that was supposed to be in between the foyer and the rest of Paese’s unit was missing because of renovations. As a result, the four men could see directly into Paese’s unit.

Photo by iStockphoto.com/Davizro

     When the door opened, Paese threw duct tape at the four men. And when the code inspector started taking pictures, Paese hit the phone out of the code inspector’s hand. Paese was charged with felony battery on a code inspector. Paese moved to dismiss on the grounds that Florida’s Stand Your Ground law gave her the right to use non-deadly force against the code inspector because the four men were wrongfully interfering with her personal property by intruding into her condominium unit. The trial court denied the motion to dismiss.

     The Florida appellate court disagreed with the decision, ordering the trial court to dismiss the case against Paese. The court found that Paese was entitled to immunity from prosecution when she used non-deadly force to prevent or terminate the tortious interference with her personal property after the four men used a master key fob to overrider Paese’s exclusive access and intrude on her private home taking pictures of its interior. The court explained that Section 776.031(1), Fla. Stat. (2020), Florida’s Stand Your Ground law, provides the following:

     A person is justified in using or threatening to use force, except deadly force, against another when and to the extent that the person reasonably believes that such conduct is necessary to prevent or terminate the other’s trespass on, or other tortious or criminal interference with, either real property other than a dwelling or personal property, lawfully in his or her possession.

     The court continued, noting that had Paese used deadly force, that would not have been justified since the four men were not committing a felony.

     The court further noted that under the Declaration of Condominium, the association could not enter Paese’s unit without her consent or proper notice to enter at “reasonable hours.” As the court stated, “It was only after the four men in the elevator disregarded Paese’s multiple verbal requests to desist from tortiously interfering with her personal property, and depart from the private entry to her home, that she used a proportionate amount of force to prevent or terminate their unprivileged actions.”

     With due caution, Florida community associations should be cognizant of the risks associated with sending a manager or a volunteer into a zone of danger. The lesson to be learned is not to enter a member’s property without the member’s consent. Occasionally there is such an emergency that immediate action is recommended, but consider calling the police or other authority first. 

Michael J. Gelfand, Esq.

Senior Partner, Gelfand & Arpe, P.A.

     Michael J. Gelfand, Esq., the senior partner of Gelfand & Arpe, P.A., emphasizes a community association law practice, counseling associations and owners how to set legitimate goals and effectively achieve those goals. Gelfand is a dual Florida Bar board-certified lawyer in condominium and planned development law and in real estate law, a certified circuit and county civil court mediator, a homeowners’ association mediator, an arbitrator, and parliamentarian. He is a past chair of the Real Property Division of the Florida Bar’s Real Property, Probate & Trust Law Section, and a Fellow of the American College of Real Estate Lawyers. Contact him at ga@gelfandarpe.com or 561-655-6224.