Protecting Common Areas from Contagion

As the coronavirus proliferated across the globe, community association managers have been reminded of the critical role they can play in containing the spread of germs. Whether during the COVID-19 crisis or future public health emergencies, their clients need help making some tough choices, particularly when it comes to managing the common areas in their communities.

Recognizing the Respective Roles

Managers and boards of directors owe a fiduciary duty to the association to act in good faith, prudently, and in the best interest of the association. The duty generally doesn’t include protecting owners’ health and safety. But that doesn’t mean they’re off the hook when it comes to the question of quelling the spread of infections.

“Associations don’t guarantee owners’ personal safety — that’s impossible — but there is the duty to not be negligent and to take reason steps in light of foreseeable harm,” says Michael Kim of Schoenberg Finkel Newman & Rosenberg, LLC in Chicago.

“If you have a healthcare crisis that’s been acknowledged by government officials, and they say you should take certain steps, I think it would be negligent for an association not to take appropriate steps.”

Just what those steps are is up to the board (preferably in consultation with association counsel), not the manager.

“What we did to protect ourselves in decisions about how to treat the common areas was direct the boards to the CDC website and the county health department for suggestions, information, and guidance for gathering places,” says Paul Grucza, director of education and client development at the Seattle-based management company CWD Group. “We left it up to the board to determine how they wanted to handle it and then we would be the messenger.”

The board’s options will depend on the type of community, the applicable government orders, and the governing documents. In the case of the coronavirus, the responses seem to fall somewhere on a spectrum from complete closures of amenities to less intense restrictions and stepped-up cleaning.

Closing It Down

While boards probably have the authority to close common areas, that doesn’t mean a board must do so (unless subject to government orders).

“Practically speaking, we look at the community itself. I’d be more willing to tell a community it absolutely should close common areas when it’s a high-rise building versus a 20-unit co-op,” says Jennifer Biletnikoff, a shareholder in the Naples, Fla., office of Becker & Poliakoff. Closure also might be advisable in high-risk communities, such as those whose residents are age 55 or over.

In some areas, more sweeping measures may be appropriate, regardless of the community type.

“We recommend adopting rules that will temporarily close clubhouses, recreational facilities, and other non-essential areas,” Kevin Hirzel, managing member of Hirzel Law, PLC, a Michigan-based firm that works with community associations. Michigan has been among the hardest hit states as far as reported cases of COVID-19.

“The adoption of these kinds of rules limits an association’s potential liability as many insurance policies don’t provide coverage for disaster-related injuries,” Hirzel says.

Exploring Alternatives

Not every common area is even a candidate for closure. “People still need to come and go and have certain services,” Kim says. “In some cases, for example, there are common area laundry rooms, and it’s unrealistic to say nobody can use those for a month. You have to afford basic needs with certain precautionary measures.”

An association could, for example, close, disinfect, and then reopen a common area with clear protocols.

“In addition to recommending increased sanitation of the common areas, we’ve been drafting rules that limit the use of elevators, entryways, hallways, and lobbies,” Hirzel says.

“For elevators, common hallways, lobbies, and areas like that, we recommend adopting rules that require social distancing, keep delivery people outside, and limit the types of guests allowed in common areas.”

In Florida, some of Biletnikoff’s boards have tried to get creative to deal with an order that categorizes swimming as essential but limits gatherings to no more than 10 people. “I have some clients that have removed all but 10 chairs at the pool and some that have removed all pool furniture. Others put up signs saying ‘proceed at your own risk; we’re not making any guarantees.’ That makes me cringe as a lawyer.”

Any such rules should undergo attorney review before taking effect. Counsel can reduce the risk of illegal or discriminatory provisions or rules that clash with applicable emergency orders.

Dealing with the Pushback

Not surprisingly, some owners have been unhappy with the new common areas restrictions. Much of the time, boards and managers have little choice but to grin and bear it.

“I’d rather have you yelling at me that I shut your gym down than because your mother went to work out and contracted the virus,” says Sandra Gottlieb a founding partner of California homeowner association law firm SwedelsonGottlieb.

Katie Anderson, CEO of Aperion Management Group, LLC, which manages around 65 associations in Central Oregon, had a handful of owners push back on closing pools and pool houses. “We tell them they can call the governor’s office if they have a complaint,” she says.

Pool closures seem to be especially sensitive in parts of Florida. “People in this area are really serious about keeping their pools open,” Biletnikoff says. In one association, owners actually picketed outside of board members’ residences to protest closing the pool.

Grucza has had better luck with common area restrictions. “In 99.9% of the cases, the residents were supportive,” he says. “Others were a little more than pissed off that amenities in their buildings were closed down.”

Some owners at Grucza’s clients even requested rebates on their assessments. “We basically sent them the message that they’re obligated to pay the assessment pursuant to what they agreed to when they purchased their units, and the board has authority over the use of amenities,” Grucza says.

He points out, too, that amenities continue to incur costs whether used or not: “They’re still being cleaned and sanitized, they’re still insured.”