Blog originally published by Nowak|Howard Community Association Attorneys.
With the rapidly evolving COVID-19 pandemic, homeowners association lawyers are already seeing many condominium and homeowner associations ask difficult questions and seek advice on how to handle certain decisions during this time. High-rise condominiums, particularly, are struggling to navigate necessary social distancing practices; however, every community association with common areas is faced with the issue of curtailing avoidable social interaction. Boards and community managers are asking homeowners association lawyers what actions should or can be implemented to address these day-to-day interactions and limit the spread of COVID-19.
What follows are questions and answers the homeowners association lawyers at NowackHoward are now fielding daily from more than 500 community association clients located throughout Georgia. These community associations include high-rise buildings, vertically attached units, single-family homes and 55+ communities.
Our answers here are offered as possibilities for consideration, if applicable, and not as specific legal advice.
1.Q: Is the Association responsible for preventing the virus from infecting the residents of a building or community?
A: No. That is not possible, and Associations should not represent that they will prevent the virus from entering their community.
2.Q: Since the Association has the general duty to maintain the common area, what is a Board’s duty to undertake actions to reduce the risk of contamination?
A: Actions to combat the virus are more than normal maintenance. While there is no action an Association can take to guarantee that common area is virus-free, a Board can carry out various strategies suggested by the CDC and other experts to attempt to minimize the spread of the disease.
Many Boards are now taking the following actions, as may be applicable to their building or community:
Increasing cleaning of common areas and high-touch areas, like door handles, light switches, elevator buttons and handrails, throughout each day;
Placing hand sanitizer and wipes throughout the buildings;
Closing amenities and club rooms and other gathering spaces;
Removing tennis and pickle court nets;
Locking gates to playgrounds and to amenity restrooms;
Closing service elevators;
Not allowing contractors, appliance delivery, and other service providers access to the building except for emergencies;
Redirecting USPS, FedEx, UPS and all other deliveries to a designated entrance;
Requiring ambulances to enter and exit a designated entrance;
Requiring the EMS attendants to use the service elevators to enter and leave the building;
Asking residents to disclose if they are in quarantine or have tested positive for the virus;
Requiring residents to notify the front desk of any food deliveries;
Encouraging residents to limit guests; and
Limiting interaction with on-site staff or closing on-site Association offices.
3.Q: Can a Board temporarily close portions of the common area and amenities?
A: Most governing documents give a Board the authority to control, manage, and operate the common areas and make decisions believed to be in the best interests of the membership. Some documents, however, require a vote of the members to authorize a Board to temporarily close an amenity or portion of the common area. Consult your legal counsel to determine your Board’s authority and member notice requirements.
4.Q: Can an Association require residents to disclose if they have tested positive for COVID-19?
A: No, an Association may not require such disclosure. An Association may ASK residents to disclose if they have tested positive.
5.Q: Is there something a Board can, should or must do if it receives reliable information from a resident, visitor or staff member who may have the virus? Can the person be identified?
A: The answer to this question has evolved each day based on the information provided by the CDC and other infectious disease experts, particularly the time during which a person is contagious. We believe a Board must generally notify all residents as soon as possible after being informed by the person that he or she is being tested and if confirmed as being infected. Ideally, the Board would secure the consent of the person to share their name with the other residents so that the residents can determine the degree of their risk of having been exposed. Otherwise, a notice that “someone” in the building or community has been tested or is positive for the virus should be sent; however, homeowners association lawyers caution that such a message makes everyone in the community potentially “that person” if no person is identified.
6.Q: Does a Board in its governing role have the authority to order quarantines, restrict access to only residents, lockdown the building, etc.?
A: No. Unlike federal, state and local governments, an Association does not automatically have police powers, and that authority is not a provision typically included in Association governing documents.
7.Q: What if a resident or guest refuses to comply with the actions the Board has taken to stop transmission of the virus?
A: Physical confrontation to keep someone in a unit or to keep someone out of the building or off a tennis court or other amenity is never authorized. Aside from appealing to the person to comply, if an Association believes that a resident or guest is behaving in an irresponsible manner harmful to other residents, the local health department authority should be notified.
8.Q: Can a Board require an infected resident to leave the building or community?
A: No. With infected persons quarantined to their homes, their unit or dwelling is their home. If an infected resident is behaving recklessly, the local health department authority should be notified.
9.Q: Should Associations carry out enhanced cleaning of the common areas?
A: Any action that aids in stopping the transmission of the virus is laudable. The potential effectiveness is directly proportional to the availability of staff to perform the work, the frequency of the work, the availability of cleaning supplies, the size of the area and the level of traffic in those areas. Keep in mind the need to control expectations. Do not represent that any common areas are fully sanitized or free from the virus, because that cannot be known.
10.Q: Do members continue to be obligated to pay assessments (dues)?
A: Yes. Both the Georgia Condominium Act and the Georgia Property Owners’ Association Act require the payment of assessments and do not provide for exceptions. Also, Association governing documents state that no owner is exempt from liability for assessments based on non-use of the common areas.
11.Q: Does a Board have any flexibility with collection of assessments?
A: Yes. Boards are authorized under Georgia law to make good faith business decisions. Waiving interest and late fees or extending due dates gives some relief to members, often with little effect on the Association. Boards also have the flexibility to accept payment plans. Members unable to pay assessments should contact their Board, not just stop paying. In the short run, if assessment income is insufficient, Boards should also look to supplementing assessment income with loans from the Association’s reserve account when allowed by the governing documents. Pay back would be included in future budgets. Associations also may be entitled to small business loans and other government assistance.
12.Q: With private streets, does the Board of a gated community have more authority to limit or prevent access than un-gated communities?
A: Probably not, because Association governing documents grant each resident a right to use the streets. Most governing documents also prohibit an Association from limiting a resident’s access to or from their unit or dwelling. Whether a Board has the authority to deny access to non-residents is complicated, since most documents also provide that each member’s easement extends to their family, guests, and tenants.
******* With the COVID-19 pandemic, Mr. Nowack and Ms. Howard have been collaborating with the leading community association attorneys in Boston, California, Denver, Honolulu, Houston, New York City, Virginia, and Washington, DC, in formulating the answers and responses in these totally unchartered waters.