We recommend that the community manager or board communicate to the unit owners the need to wear a facial covering, and preferably gloves, anytime they exit their unit. Even if it is to go to the laundry room or some other common area, as anything that reduces the likelihood of transmission from one person to another benefits everyone.Daniel Miske, Esq., CCAL, Husch Blackwell LLP, Milwaukee, Wisconsin
As homeowners association residents voice growing concerns about people coming from unknown places into their communities during the COVID-19 pandemic, boards are taking direction from states and localities to temporarily ban short-term rentals to slow the spread of the disease.
“Many associations which do not already ban leases of less than a month are imposing temporary outright bans on short-term rentals,” for the health and safety of residents, says Marshal Granor, managing partner at Granor & Granor in Horsham, Pa., and a fellow in CAI’s College of Community Association Lawyers (CCAL).
Some states have imposed short-term rental bans to combat this crisis. In Florida, where short-term rentals are extremely popular, restrictions are now in place at hotels, resorts, or other lodging to stop the spread COVID-19. According to Florida Gov. Ron DeSantis, there are no check-ins for short-term rentals for the next two weeks. People already in Florida can stay until end of their rental period.
“There are many localities, cities, and counties implementing emergency temporary orders banning short-term rentals. Community association boards should check with their local municipality to see if a ban is in place,” says Dawn Bauman, CAE, senior vice president of government and public affairs at CAI. “It may be easier for an association to rely on a government-ordered ban on short-term rentals as opposed to creating their own.”
Any nonessential meeting should be postponed. If a meeting cannot be postponed, association boards should move it to an electronic meeting whether video or telephone. It is important to remind attendees that recording of board meetings is not allowed. During this time, association boards should delegate as much to management as possible.Matt D. Ober is a partner of Richardson|Ober|DeNichilo in Pasadena, Cali., and a fellow in CAI’s College of Community Association Lawyers (CCAL).
If possible, nonessential contracts should be deferred. If an essential project is taking place, it is crucial to speak with the vendor about its ability to staff the project within current CDC guidelines. Any contract modification needs to be in writing and approved by the board. A protocol needs to be established for necessary services (refrigerator repair) that promotes health and safety for other residents.David Graf is a partner of Moeller Graf, P.C. in Englewood, Colorado, and a fellow in CAI’s College of Community Association Lawyers (CCAL).
This will vary between associations and must comply with local ordinances. Board and management together should determine what is an essential service and how to execute those services. These services will vary between condominiums and single-family communities. If a service can be provided off site this should be considered. Sandra K. Denton, CMCA, LSM, PCAM
It may not be reasonable to shut down a community’s laundry room. However, social distancing needs to be kept in mind when developing procedures to use this facility. This is a great situation to create a schedule for residents to use the facility. An example would be designating a specific day each floor has access to the communal laundry room.David Graf is a partner of Moeller Graf, P.C. in Englewood, Colorado, and a fellow in CAI’s College of Community Association Lawyers (CCAL) andMatt D. Ober is a partner of Richardson|Ober|DeNichilo in Pasadena, Cali., and a fellow in CAI’s College of Community Association Lawyers (CCAL).
The answer is yes. As the number of COVID-19 cases increases nationwide, many boards are faced with a difficult business decision — should we (and can we) close common facilities? Indeed, most governing documents provide clear authority to the board to “operate, manage, and supervise” common facilities, which could include suspending their operation.
If the board believes that closing a gym, business center or community room is in the interest of the health and safety of residents to minimize the spread of disease, this is arguably a defensible, sensible business decision under the governing documents. If a board makes this kind of decision, we recommend making the rationale clear in a written communication to the members.Wil Washington is a partner at Chadwick, Washington, Moriarty, Elmore & Bunn, PC in Fairfax, Va., and a fellow in CAI’s College of Community Association Lawyers (CCAL).
While associations have a general duty to keep common areas safely maintained, a pandemic emergency of this type is different than more typical common area safety issues. In short, there is no action an association can take to guarantee that the common area is totally clear of the virus, especially as residents come and go on an ongoing basis. What the Board can do is utilize expertise of the CDC and other government authorities to implement recommended strategies to minimize the spread of the disease and have as safe an environment as reasonably possible. We see associations taking the following steps:
• Closing various amenities, including gyms, clubhouses, community rooms and similar areas.
• Requiring residents and guests to “stand back" a respectful distance from staff and concierges.
• Limiting in-person access to site staff and other association personnel
• Limiting repair work to “essential only," in order to minimize contractor traffic, as well as entry by other service providers;
• Enhanced cleaning of surfaces (from elevator buttons to handrails), multiple times per day.
• Placement of hand sanitizer and wipes throughout the buildings and other Association facilities, to the extent supplies are available.
• Encouraging residents to limit guests as much as possible, particularly those with symptoms.
• Asking that residents disclose if they are in quarantine or test positive, so that the association can consider whether additional mitigation measures need to be implemented to ensure a successful quarantine.Chadwick Washington Moriarty Elmore & Bunn, PC
Jessica Towles, CMCA, AMS, PCAM
I am recommending that my clients prohibit all nonessential guests from entering their communities at this time to minimize their residents’ exposure to COVID-19. Caretakers and immediate family members of residents would be excluded from that prohibition.Donna DiMaggio Berger, a shareholder at Becker in Fort Lauderdale, Fla., and a fellow in CAI’s College of Community Association Lawyers (CCAL).
Yes. Some states have already built in a period of time for associations to use emergency powers. Some of these powers include electronic meetings, electronic voting, and reserve funding use. Every association should consider adopting emergency power procedures. Edmund Allcock, Esq., CCAL
Probably not. Older board members with underlying medical conditions are justifiably concerned about possible exposure to the coronavirus. There are steps they can take to minimize their risk and still fulfill their duties as directors.Conference Phone. Concerned directors can attend meetings electronically via telephone, provided they can hear all other directors in the meeting and all other directors can hear them. This is easily accomplished with a conference phone. Attendance in this manner counts as if the director were physically present in the meeting. (Corp. Code §7211(a)(6).)The Entire Board. If ALL directors wish to attend a board meeting by telephone, they can do so. However, notice of open meetings must identify at least one physical location with a conference phone where homeowners can attend the meeting and listen to the board conduct business. (Civ. Code §4090(b).) The statute does not require any of the directors be physically present at the meeting location--only a representative of the board (such as the manager).Emergency Meeting? What if the management company has suspended all meeting attendance for their managers due to the coronavirus? If no other representative can be found to set up the conference phone, can the meeting still be held as an emergency meeting. Unfortunately, this does not meet the definition of an emergency. An emergency is defined as "circumstances that could not have been reasonably foreseen which require immediate attention and possible action by the board, and which of necessity make it impracticable to provide notice" to the membership. (Civ. Code §4923; Civ Code §4930(d)(1).)Fortunately, technology has reached the point where a call-in number can be published along with the agenda so members who wish to attend can also call into the meeting. All attendees except the board should mute their phones and only listen to the meeting. Except for open forum, members cannot participate in the board's meeting. For associations where there may be a large number of attendees, boards should consult with a technology expert to determine which call-in service best serves their needs.Adrian J. Adams, Esq., Managing Partner at ADAMS | STIRLING PLC in Los Angeles, Calif.
To protect your membership from the spread of the coronavirus, you have two options.
Option 1. Suspend the Annual Meeting. Suspend your annual meeting until the coronavirus crisis passes. At that point, reschedule the meeting, have the inspector of elections bring in the ballots, open them in front of the membership and tabulate the results. At that point, new directors are seated. Until then, existing directors remain in place.
Option 2. Suspend Attendance but Count the Ballots. Your second option is to suspend membership attendance at the annual meeting but have the inspector open ballots and tabulate results. To protect the inspector, the counting could be done at the inspector's office. That way, the inspector avoids traveling to and working in an area that may already be contaminated. The downside is that members cannot observe the counting of ballots. Even though this is contrary to the requirements of the Davis-Stirling Act (Civ. Code §5120(a)), I believe it is acceptable under the circumstances.
The option you choose is a business decision for the board to make in consultation with legal counsel. Once a decision is made, make sure you communicate it to the membership.Adrian J. Adams, Esq., Managing Partner at ADAMS | STIRLING PLC in Los Angeles, Calif.
Residents have a right to stay in their home if they are quarantined. Management needs to plan for how these residents will get their mail, package deliveries, and dispose of garbage. It is important to remind staff to never enter a resident's unit. David Graf is a partner of Moeller Graf, P.C. in Englewood, Colorado, and a fellow in CAI's College of Community Association Lawyers (CCAL).
HIPPA laws do not apply to community associations. However, associations should try not reveal names of quarantined if possible but can still let residents know if there is a case is in their building.David Graf is a partner of Moeller Graf, P.C. in Englewood, Colorado, and a fellow in CAI's College of Community Association Lawyers (CCAL).
This raises conflicting interests--a person's privacy about their medical condition and the membership's safety.Authorized Disclosure. If the person with the coronavirus authorizes full disclosure, the board can disclose the person's name to the membership. This allows residents who had contact with the person to immediately self quarantine and get tested for the virus. Before doing so, I encourage two precautionary steps for boards. First, the authorization should be in a written communication from the person or the person's attorney. It should never be based on hearsay and rumors. Second, the disclosure should be limited to members and residents. Particular vendors who may have had contact with the person could also be alerted. The board should not broadcast the information outside of the community.
No Authorization. If the infected person tells the board in confidence that he contracted the coronavirus and does not want anyone to know, the board may still have a duty to notify the membership. However, it would do so without disclosing the person's name. The board would simply report, “A resident has reported testing positive for the coronavirus.” A disclosure, however limited, alerts residents to take extra precautions to protect themselves. In addition to giving notice, the board should contact the Centers for Disease Control. The CDC has the power to make additional disclosures, trace contacts, quarantine individuals, and take other actions it deems medically necessary.Self-Quarantine. What if the person does not have the coronavirus—he is simply self-quarantining as a precaution? If that is all he is doing, I don't believe the board has an obligation to notify the membership. Potential Liability. There is always the potential for liability if a board becomes aware of a threat to their community and does nothing. If, as a result of the failure to disclose, members fall ill and some die from the illness, lawsuits will likely follow. Accordingly, silence may not be the best course of action.Recommendation: As volunteers, boards are allowed to seek expert advice. When confronted with issues involving the coronavirus, directors should not make decisions based solely on recommendations in a newsletter--whether mine or someone else's. They should contact legal counsel and the CDC for guidance.Adrian J. Adams, Esq., Managing Partner at ADAMS | STIRLING PLC in Los Angeles, Calif.
This is a difficult question to answer. We suggest that any non-essential service be postponed until “the coast is clear” per CDC guidelines. If the service is truly essential (a plumbing backup), there are protocols that can be undertaken by qualified contractors, but securing them may be difficult given the national emergency. This must be reviewed on a “case by case” basis.Chadwick Washington Moriarty Elmore & Bunn, PC
Many associations are employers or have a role in working with management company staff on site. Site staff should be encouraged to report to management or the Association if they start experiencing symptoms of the virus, so CDC-recommended measures can be implemented to minimize the risk of infecting others. The Association should determine if the staff member has recently interacted with any particular resident, so those residents may be alerted as well.Chadwick Washington Moriarty Elmore & Bunn, PC
The primary job of association boards and staff is to disclose crucial information—what is happening and why—to our residents. It is important to put thought into the best central location for your community to receive information and that it is consistent between all platforms. Many communities are using a central bulletin board, email, and social media platforms to provide residents with updates. Boards and staff are encouraged to date and timestamp all messages.Matt D. Ober is a partner of Richardson|Ober|DeNichilo in Pasadena, Cali., and a fellow in CAI’s College of Community Association Lawyers (CCAL).
Compassionate leniency should be exercised when possible. It is important for boards to review their collections policy from a compassionate place. Associations need to assess if essential services can be provided if the association is late on paying its fees. If possible, associations should try to waive late fees and fines.Matt D. Ober is a partner of Richardson|Ober|DeNichilo in Pasadena, Cali., and a fellow in CAI’s College of Community Association Lawyers (CCAL).
Associations should require a written statement from residents that includes where they worked and why they are asking for lenience.
Residents need to be reminded that amenities are closing for health and safety concerns outlined by public policy. Associations will incur more cleaning costs during this time. Typically, an assessment reduction only applies to a resident if he or she is not receiving a service other members of the community are receiving.Matt D. Ober is a partner of Richardson|Ober|DeNichilo in Pasadena, Cali., and a fellow in CAI’s College of Community Association Lawyers (CCAL).
Compassionate leniency should be considered when possible. All collection policies need to be fair, reasonable and consistent and this should not charge during the COVID-19 crisis. Jessica Towles, CMCA, AMS, PCAM
The crisis will end at some point (hopefully soon) and businesses will restart. I recommend boards place a lien on delinquent properties to protect the association’s interests, but suspend all foreclosure activity. Once people return to work, you can work out payment plans with delinquent owners.
Permanent Job Loss. The more difficult scenario will be those persons who permanently lose their jobs. They will be looking for new jobs once the economy reengages. How long do you wait for them to find work? What if they can't? When you get to that point, you will need to discuss options with legal counsel and decide how best to proceed.
Drop in HOA Revenue. If delinquencies impact cashflow, associations still need to pay their bills. If boards need to, they can borrow from reserves. Without a vote of the membership, boards are allowed to borrow from reserves to meet short-term cashflow problems. (Civ. Code §5515(a).) Monies borrowed from the reserves must be repaid to the reserve fund within one year of the date of the initial transfer, except that the board may, after giving the same notice required for considering a transfer, and, upon making a finding supported by documentation that a temporary delay would be in the best interests of the association, temporarily delay the repayment. (Civ. Code §5515(d).)Adrian J. Adams, Esq., Managing Partner at ADAMS | STIRLING PLC in Los Angeles, Calif.
Yes. Just as the economic crisis in 2008, this pandemic is already resulting in difficult financial situations for citizens throughout the country. If the crisis is only a few months, the Association would likely be well-served by being flexible with owners, such as waiving late fees or granting payment plans more liberally. If the crisis drags out further, however, other alternate strategies might be considered, including budgeting a larger amount for bad debt. Another “wild card” is whether government stimulus might be available to associations or members during this difficult time – and that has yet to play out definitively.Chadwick Washington Moriarty Elmore & Bunn, PC
Contractors should be prohibited from entering the community unless emergency repairs are needed in a unit or on the common elements. Realtor open houses or showings should not be permitted. There are other people who have a legal right to enter the community such as process servers or census takers. Those people can be required to wear protective gear before entering.Donna DiMaggio Berger, a shareholder at Becker in Fort Lauderdale, Fla., and a fellow in CAI’s College of Community Association Lawyers (CCAL).
There are several considerations that need to be made by managers and boards, including are the services still being provided during this time? It is important to sit down with the contractors to negotiate what services can continued to be provided. Sandra K. Denton, CMCA, AMS, PCAM It is also important to take a close look at any current contractors for force majeure language for interruption of service payment procedures. Edmund Allcock, Esq., CCAL
It is a good idea for boards to encourage staff as a best practice – managers, concierge, janitors, etc. – to carry this proof on them when traveling from home to work. If the association board has not provided you with proof of being an essential work, CAI has a template on our website for your use. Jessica Towles, CMCA, AMS, PCAM
It is important for a board to consider what is an essential service and important during this time. If landscaping is an essential service in your state this should be considered when enforcing a mowing rule. However, if you are receiving these types of complaints, it is important for a manager or a board to be considerate of how they approach a resident. Social distancing needs to be maintained. Sandra K. Denton, CMCA, LSM, PCAM