While everyone is rightfully concerned about contracting the COVID-19 virus, fears are understandably amplified in a large, multi-story condominium buildings where individuals share common areas such as lobbies, gyms, laundry rooms and elevators. In an effort to address some of the uncertainty that has arisen for condominium associations in Boston, we have compiled a list of the following questions that we have received from property managers and board members, as well as our responses.
In an effort to address some of the uncertainty that has arisen for condominium associations in Boston, we have compiled a list of the following questions that we have received from property managers and board members, as well as our responses.
Can an association prevent guests from coming into the building?
Yes. The board controls the common areas of the condominium. The board can, and likely should, prevent non-residents from entering the building. However, exceptions should be made for health care providers.
Can an association prevent vendors from coming into the building?
Yes. Again, the board controls the common areas. The board may want to consider limiting vendor access to emergent or essential conditions – such as a plumber responding to a leak. Contractors should otherwise be prohibited from entering the building. Indeed, the City of Boston has suspended construction activity.
Can an association require vendors/guests to wear a face covering?
Yes. Just as the board can limit access to the common areas, it can also impose restrictions upon those permitted to access those areas. The Centers for Disease Control and Prevention (CDC) recommends wearing face coverings in public settings where other social distancing measures are difficult to maintain. Further, the Massachusetts Department of Public Health has issued a face covering advisory and the Boston Public Health Commission is encouraging people to wear a face covering when they leave their home. Accordingly, boards can, and likely should, require vendors and guests to wear a face covering in the condominium’s common areas.
Can an association require unit owners to wear a face covering?
Given the current national pandemic, a board would have a compelling argument that fluids escaping the nose and mouth of a unit owner constitute offensive or noisome conduct under the governing documents of the condominium. A board would be better served to strongly request compliance rather than actually imposing a rule.
Can an association require unit owners to disclose their COVID-19 status?
A board cannot require unit owners to disclose their COVID-19 status. A board could, however, request that owners voluntarily provide the information. If a unit owner is willing to provide full disclosure of their status – including their identity – the board should secure written authorization from the individual. The board should not disclose the information outside of the community, unless it is believed that a particular vendor came into contact with the person.
Can an association disclose the identity of a unit owner with COVID-19?
An association should not disclose the identity of a unit owner with COVID-19. While HIPAA does not apply to a condominium association, the federal Privacy and Fair Housing Acts are applicable, and disclosure of a resident’s COVID-19 status may be discrimination in housing against a person with a disability. The Federal Fair Housing Act prohibits inquiries into whether a resident has a disability, which would include questions concerning medical conditions. Revealing the identity of the sick individual could actually make other residents who subsequently become ill less likely to report their COVID-19 status. The board should, however, notify the unit owners that someone in the building is carrying the virus, is sick, or is quarantined by posting notices and/or sending out an email notification.
Can an association require packages for delivery to be left outside?
Yes. If the resources are available, property management staff should coordinate contactless package delivery with residents.
Can association prevent dog walkers from entering the building?
Yes. The board may be able to have property management staff facilitate dog walking by arranging pick-up and drop-off times of the pet at pre-arranged times.
Can an association cancel its annual meeting?
No. The board may consider postponing the meeting to a later date (so long as the Board still provides proper notice in accordance with the condominium’s bylaws). Another alternative would be conducting the annual meeting remotely via conference call, skype, Zoom, or other video-conferencing method. Consultation with association counsel should be made in order to assure that compliance with the governing documents can be accomplished before proceeding with a remote annual meeting.
Does an association have a legal duty to protect the health of unit owners?
No. However, the board does have duties to act reasonably and in the best interest of the association. Pursuant to these duties, a board would be well served to take actions such as closing common facilities such as gyms and community rooms, removing furniture from roof decks or other exterior common spaces, extensively cleaning the common areas, and postponing or canceling community events. Boards may also want to consider increasing their cleaning budget to allow for enhanced cleanings of common areas. To the extent that the board elects to close a gym, roof deck, community room, or business center, the board should make the rationale for its decision clear to the community in a written communication – specifying that the decision was made in the interest of the health and safety of the residents.
Can an association close a common laundry room?
While the Board controls the common areas, closing a common area laundry room would likely be found to be unreasonable. However, social distancing procedures could be implemented such as establishing a schedule for residents to use the facility. Also, property management staff should thoroughly clean these areas with recommended chemicals multiple times daily.
Federal, state and local regulations are being issued and modified as the pandemic evolves. MTM will continue to provide information related to these evolving issues. We would strongly encourage property managers and board members to confer with counsel on these issues so that the specific facts and circumstances can be given careful consideration.