On March 11, 2020, the World Health Organization declared the coronavirus outbreak (“COVID-19”) a pandemic. The Centers for Disease Control has detailed recommendations for individual preparation and response to the outbreak of COVID-19. The President just declared a National State of Emergency and many states including New York declared a State of Emergency. This is a scary time throughout the world and we have to take action now to help our associations.
This is especially true for condominiums, cooperatives and homeowners associations. Unlike the schools, sporting events or other large gatherings, owners in these communities live amongst each other sharing common area. When quarantined or told to stay home from the office or to work from home, they are still a part of a mass of people who are stuck living amongst each other. So what can management and boards do to protect their community associations?
Consider whether your House Rules are Sufficient. You are a quasi government with your own house rules. For the most part you are allowed to make your own rules provided that they do so within the confines of the law. The board should review their house rules and determine whether new rules are needed. Rule changes can be done by a board vote. With residents home from work and children out of school, there are going to be a lot more people in the common areas during the day for the unforeseeable future. The rules may have to change. There is usually a rule concerning not creating a nuisance condition. Is having a fever and using the common areas like the laundry, rooftop recreational area, gym, playrooms, pool, etc., a nuisance? Perhaps spell it out in a rule change. You should confer with counsel to make sure the rule is within the confines of the law, doesn’t discriminate and is evenly applied. Otherwise, your good intentions, could turn into a discrimination claim or a lawsuit. Be careful and considerate. But, rule making that protects all owners and residents and that is in the best interest of the whole community will likely help.
Keep Everyone Informed. The media is saturated with national and local information and misinformation but what about information on your particular association. Let your owners and residents know that the board and management are at the helm, steering the ship with confidence and all of their interests in mind. If your association has a website, post regular information on the rules, rule changes, places that you’ve installed hand sanitizer, cleaning processes that are being employed in the common areas and anything else that you are doing as a board or management to protect your associations during this unsettled time.
Take Charge of the Common Areas. The board is charged with governing the community and the common areas. If the common areas are not particularly cleaned on more of a regularly basis, one could see owners and residents who contract the virus, complaining that the board or managment was negligent in performing their obligations to the community and/or breached their fiduciary or contractual duty to the community. Review what is being done re the common areas.
For example, the board and management might review the frequency of the cleaning of any shared community areas such as a clubhouse, pool, gym, etc. In addition, the Board should review how well the shared areas are actually being cleaned. Further, the association may want to assess whether additional hand sanitizers, automated soap dispensers or disinfectant wipes need to be added to common areas. A board may even consider shuttering common areas or amenities on a temporary basis.
If an individual suspected or confirmed to have COVID-19 has been in the common area, it is recommended by the CDC to close off those areas and wait up to 24 hours before beginning to clean and disinfect.
Consider Alternative to In-Person Board Meetings. It may be a good idea to put off in person board meetings for the time being. Board meetings in New York can be done telephonically as long as everyone can hear each other. Online board meetings are a possibility as well. Some products like Office of the Board (www.officeoftheboard.com), allow boards to meet online, or even make board decisions without a meeting provided that everyone is unanimous. Decisions that are unanimous can be done by unanimous written consent and don’t require a board meeting. Where a meeting is required consider having management or the board members coordinate a telephone call or a video-conference for the board to get together and make decisions. Staying outside a meeting room or each others apartments for the time being is probably a good idea until we learn more about the virus and how it is transmitted.
Postpone Annual Meetings. If your association’s annual meeting is coming up, postpone it for now unless a prompt unit owner decision is absolutely necessary. There are electronic voting applications which allow for owners to vote electronically from wherever they are. Like in person board meetings, annuals should be postponed or an alternative way of having electronic voting should be explored. Your counsel should be consulted about whether the new laws in New York on electronic voting applies to your association or whether you need a bylaw change to allow electronic voting. If your association can electronic vote now, it should be explored as congregation of owners is not necessary.
Avoid Liability. As mentioned, it is inevitable that a resident will contract the virus. It is also likely that a resident could infect another resident with the virus or that an association employee may have the virus and infect a resident or be infected by the resident. The virus situation should be no different than a unit owner to unit owner issue about noise or leaking, or a staff-resident or resident-staff issue. Illness and safety is always concerning and heightens the stakes. However, in the end, the board is charged with operating the association, maintaining the common elements and doing its best to be reasonable and act for the best interest of the association. In rule making or taking action, be considerate yet protective of the entire community for which you represent. Exercise your business judgment as a board collectively. Do not make self interested decisions and when in doubt consult your professionals.
In sum, when faced with a health crisis like COVID-19, the association’s board and management should be proactive in thinking about upcoming annual meetings, board meetings, community events, etc. We recommend keeping everyone informed about what the board and management is doing to protect the community from the virus. Community associations should also review their rules and may wish to consult with legal counsel regarding the association’s options under the law and governing documents of the association.
