COVID-19

Property managers have been huddling, considering what to advise their condo and coop boards.  Disinfecting wipes and Purell dispensers in the lobby, a great idea but is that enough for a board to protect its residents and avoid liability.   What happens when a unit owner or shareholder contracts the Coronavirus and is quarantined in their apartment.   The government has asked residents to stay home, but that home in New York City may be shared by hundreds of other condo or coop residents who live in close proximity and share the same common areas.  What’s a board to do to protect its residents from each other.

Being proactive and taking precautions is definitely recommended.  Boards have to be reasonable in trying to protect their owners and residents.  If someone was complaining of second-hand smoke in an apartment, the board may require that openings in the offending apartment be sealed in order to try to prevent the smoke from escaping into other apartments.   If a shareholder or owner has mold in their apartment and the board finds out, the board would require the the mold be treated and condition resolved.  If a registered sex offender moves into the building, notifying residents generally that there is a sex offender living in the building would be alright; however, pointing to the particular apartment might bring a harassment or other claim against the cooperative or condominium (as well as deter people from buying into the building in the future).  

If a board finds out that one of its residents has tested positive for Coronavirus, it needs to be really careful to act reasonably and not cause a panic.  First, is it really true.  Rumors can lead to defamation claims.  There is no registry of Coronavirus victims so unless the resident reports that they have Coronavirus, in all likelihood the board will not know for sure.  The board could notify residents that it believes that a neighbor in the building has contracted the Coronavirus but it shouldn’t identify the suspected apartment or residents else it could be inviting a lawsuit, especially if it turns out to be wrong.

If a board is sure that a resident has the coronavirus, it should take reasonable precautions to protect neighbors.  Perhaps communicating with the person who contracted the virus and asking them to seal all opening into other apartments, would be reasonable.  Asking them not to use the common areas of the building would also be reasonable.  How about asking them not to use the building’s elevators where close proximity with other elevator users is almost guaranteed.  Or, maybe asking them to where face masks if venturing out of their apartment in the building? 

A board could consider making a house rule that persons who contract the Coronavirus cannot use the common areas of the building and if they are traversing the building, they need to wear a face mask. This is a new area for condos and coops so there is little court guidance. Consulting with counsel before enacting rules is recommended.  The board should be as reasonable as possible without violating the persons rights. Encoring the rule is an entirely different challenge.  Fining the person for violating the rule or bringing a court action to enjoin the person are enforcement mechanisms but will they really be effective or will it be too late where infections in the rest of the building may result in the meantime. 

Consider this – CNN has reported that in Hong Kong, experts are investigating whether Coronavirus can be spread through bathroom pipes.  In a high-rise tower a 62-year-old woman was diagnosed with the virus about a week-and-a-half after a 75-year-old man in the same building became infected.  Then three more residents became infected.  “The possibility of the virus being transmitted through pipes immediately drew comparisons to the 2003 SARS outbreak, when this method became a major source of transmission. At the Amoy Gardens housing estate, there were more than 300 infections and 42 deaths after defective plumbing allowed the virus to spread through the building.”  Perhaps having building professionals review your building’s plumbing, heating, air conditioning and other systems to assure or at least minimize the risk that the virus can travel from apartment to apartment through those systems would be a good idea.  At the very least, it would give the board cover in the event that it were challenged or criticized for not doing enough to protect its residents.

Now consider what will happen when a board does nothing or very little and one owner who has the virus, infects another resident in the building.  The resident catching the virus from another resident, may bring a lawsuit against the board for breaching its duty and causing the resident injury.  It is inevitable in the litigious society in which we live that this will happen and it is not clear how court’s will react.  Boards should be proactive now in taking precautions.  The more reasonable a board is, the less likely that a Court will find that it breached its duty to the injured resident.  If a board does nothing, it runs the risk of being sued and held liable.  And property managers should know by now, that they will be looked to by their boards for guidance and if the boards are sued, they may turn to their property managers.  Property managers should review their management contracts and see what their indemnification provisions say.  Are they indemnified and defended for all things, or is there an exclusion for negligence.  Is it negligent for property managers not to have advised their boards to take certain precautions or actions in response to the Coronavirus?  In the end if a party is injured, it is likely that the boards and property managers will both be blamed.  So, taking precautions now is important for both boards and their property managers.

So, what should a board and property manager do.  Before they learn that someone in the building has contracted the Coronavirus, they should clean more often and use disinfecting products in the common areas.  They should keep abreast at what the government is suggesting be done. They should be monitoring the Centers for Disease Control and Prevention, and the  New York City Department of Health.  The Department of Health is developing more extensive guidance for property owners and managers, and once published, they should be employed.

Buildings can and should take steps to limit the possibility of transmission, not to mention make their residents and staff feel safer. They should be cleaning and disinfecting high-traffic surfaces like front-door handles and elevator buttons, as well as common rooms, like gyms and laundry rooms. They can also place hand-sanitizer around the building. They could also post signs encouraging residents to be vigilant about keeping their homes disinfected and to cover their mouths when they cough or sneeze and to wash their hands frequently.

Once a resident contracts the virus, the playing field changes as the risk of danger to other residents escalates.  As stated, having professionals opine on whether building systems must be modified to minimize transmission risks from apartment-to-apartment is a good idea.  Communicating with the person and asking them not to use the common areas would be a reasonable approach.  Passing a house rule that anyone who has the Coronavirus should not use the common elements of the building, may be appropriate.  Alerting staff that they should not enter the apartment of the infected person without safety equipment would be appropriate.  What happens when staff refuses to enter the apartment or enters the apartment and contracts the disease?  Another area of concern for a board, its residents, staff and others.  This is a complicated situation and will probably get more complicated as time goes by and more and more people are infected with the virus.  For the time being, boards should be as reasonable as possible to protect its residents without running afoul the legal rights of the infected residents.