NOTE: The following is content submitted to The Cooperator from a professional contributor, and reflects that contributor's opinions, experience, and expertise.
The coronavirus outbreak has highlighted the tension between the rights of the community and the rights of individuals. For now, governments are relying on their inherent police power to protect the community at large. Centers for Disease Control (CDC) guidelines currently require travelers arriving from “high-risk” countries such as China, Iran and Italy to be separated at the airports, and only allowed to proceed to their destinations if asymptomatic. The CDC is “strongly urging” all travelers to “self-monitor” for 14 days for symptoms, which means remaining in their homes during that period. Travelers exhibiting symptoms are instructed to “self-quarantine” in the same manner; those who fail to comply have been threatened with arrest by local and state governmental agencies. According to the CDC website, “Isolation for public health purposes may be voluntary or compelled by federal, state, or local public health order."
Condos and co-ops (which we will refer to as ‘associations’ for the sake of this article), though, do not have governmental authority. They have to rely on the powers conferred on them in their governing documents to control the behavior of their residents. Generally speaking, an association has the right to deny owners access to common facilities on a non-discriminatory basis -- but no one has addressed the limits of an association’s power to restrict the actions of an individual owner. Meanwhile, owners are asking their boards what steps are being taken to protect their building or HOA against an outbreak within the community.
Most co-op proprietary leases and condominium bylaws, or their accompanying house rules and regulations, include clauses similar to the following:
‘...No Unit shall be used or occupied in such a manner as to interfere with the occupants or owners of adjoining Units, or endanger or unreasonably annoy them. No nuisance shall be committed or permitted to occur in or about the Units or the Common Elements…’
‘...No Unit Owner shall permit anything to be done within their Units or the Common Elements that will interfere with the rights, comforts or conveniences of the other Unit Owners; No Unit Owner will permit anything to be done within their Unit which would be in violation of any law…’
‘...The Tenant-Shareholder shall not act or permit anything to be done in the Apartment or the Building which is in violation of the law, or is hazardous.” The Association is given the further right to go to court to enforce these provisions in the event of a breach or threatened breach…’
Based on the above, how far do these powers go? Can your association require residents – regardless of whether they show evidence of illness or are asymptomatic -- to remain in their homes? Can you bar visitors from the building? Bar deliveries? Limit social events? Compel the use of a particular elevator? Close down a pool or playroom? What about a laundry room? Boards need to consider not just what steps might be effective, but also what steps will withstand a court
challenge -- or, conversely, will protect the association against potential liability claims by owners who assert that the board has not done enough.
We cannot answer these questions with assurance. We believe that ultimately, a court will need to decide what limits boards can reasonably impose on individuals’ activities within multiple dwellings in the interest of protecting other residents from exposure during a health crisis.
Initially, we suggest that boards tailor their actions to be consistent with the recommendations of appropriate medical authorities for the community at large. For example, boards might require travelers returning from high- or even medium-risk jurisdictions to remain in their homes for 14 days, and that persons showing symptoms (and any family members in “close contact” --
another CDC term) be isolated for the same period.
The board might also seek to bar third-party social events, move-ins and move-outs, alteration projects, or any other activity that involves significant
incursions into the building or association by non-residents. One of our partners has even suggested that associations might offer to pay to house an at-risk owner off-site, similar to what the building might do if it needed to make a reasonable accommodation to a disabled owner during construction.
How far should this go? Do boards have the power to bar residents from having parties if guests are restricted to neighbors? Could they bar all visitors to the building, or require visitors to demonstrate that they have tested negative within the past 72 hours? If the answer to those questions is currently No, could that answer change if local authorities acquire those powers?
If a Resident Refuses to Cooperate
If a resident refuses to cooperate with their board’s instructions, we do not recommend “self-help” such as imposing fines. Instead, we recommend that the board report the uncooperative resident to governmental authorities, such as the local or state Department of Health, or even the CDC. The board might even call the police and ask them to intervene. We emphasize that none of these agencies currently have the legal authority to require a resident to comply with a quarantine; however, law enforcement does have a significant intimidation factor, should they choose to act on such a notification.
As a last resort, boards should consider seeking court intervention, i.e., an injunction barring the prohibited behavior, combined with a temporary restraining order (TRO) granting immediate interim relief due to the immediacy of the claimed threat to the other residents. In this way the board is protected by a court determination as to whether its proposed restrictions are reasonable under the circumstances, rather than being accused of being either too draconian or too lax.
Whatever a board decides, it should implement that decision by a formal vote rather than informal discussion among members or management. This will help both to limit risky decisions by individual members or agents, and to insulate the association from liability.
Boards should consult with their legal counsel to draft a letter to circulate among owners if they decide to implement restrictions on activities within the building. We expect that board policies and notices to owners will need to be updated regularly as the scope and severity of the epidemic changes, and it’s important to make sure that any action your board takes is both legally and procedurally sound.
Kenneth Jacobs is a partner with Manhattan-based law firm Smith, Buss & Jacobs LLP. This advisory is offered as a service to clients and friends of Smith, Buss & Jacobs LLP and The Cooperator, and is intended as an informal summary of certain recent legislation, cases, rulings and/or other developments. This advisory does not constitute legal advice or a legal opinion and is not an adequate substitute for the advice of counsel.