William D. McCracken in COVID-19 on October 20, 2020 For Habitat Magazine
We have all seen clips on social media and news outlets of people ostentatiously refusing to wear a mask in public spaces, including the South Lawn at the White House. What happens when one of these so-called “anti-maskers” lives in your co-op or condominium? Although the vast majority of co-op and condo residents have dutifully complied with COVID-19 safety requirements, some residents adamantly refuse to follow the rules. These situations can be a tough test of a building’s culture and governing documents – and a board’s fortitude.
When the coronavirus ravaged New York City back in March, co-op and condo boards instituted new house rules to comply with the flurry of executive orders and other public health guidance being issued on a near-daily basis. These rules included not just mask requirements, but also restrictions on visitors and use of building amenities, among many other things. These protocols were (and are) essential to protecting a building’s residents and staff, and board members understandably want to come down hard on anyone who refuses to abide by those rules. This can be more difficult than it might seem.
First, if they’re going to be effective, COVID-19 house rules need to have been validly enacted. Generally speaking, house rules can be instituted by a majority of board members. However, if a house rule is inconsistent with an express provision in one of the building’s governing documents, it may not be enforceable. The analysis can be complicated when a building’s governing documents give residents the right to use common space – for example, a gym – but the COVID-19 house rules, in compliance with current law, restrict that right by keeping the gym closed.
When a shareholder or unit-owner (or a subletter) violates a house rule, the most common enforcement mechanism is a monetary fine. But there are pitfalls for the unwary: it is not unusual for boards to belatedly learn that their governing documents do not give them the authority to levy fines. Even if the authority is there, boards have to be careful that such fines would not look unreasonably excessive in the eyes of a judge.
Of course, if residents are willing to put their own health and the safety of others at risk by refusing to do simple things like wearing a mask or observing social distancing, levying fines may not be enough. If a resident refuses to pay, boards can pursue action against them in court, although that can be time-consuming and expensive. Boards may wish to consider imposing other, more immediate, consequences for failure to follow the rules. For example: restricting the use of amenities.
The availability of remedies may depend on whether a building is a co-op or a condo. In co-ops, boards have the power to terminate a shareholder’s proprietary lease for objectionable conduct. Even the most ardent “anti-maskers” might think twice about defying COVID-19 house rules if it could result in the loss of their homes.
Condo boards cannot evict unit-owners, but they do have the power to seek an injunction against violations of building rules. The Condominium Act also expressly authorizes boards to require a “sufficient surety” to ensure future compliance if a unit-owner has engaged in “flagrant or repeated” violations of building rules. Although this provision of the Condominium Act has rarely been invoked, condo boards should be prepared to use every tool at their disposal to ensure compliance with COVID-19 house rules. As difficult as these individual cases may be, boards must act to protect the well-being of all of their residents and staff. It could be a matter of life or death.
William D. McCracken is a partner at the law firm Ganfer Shore Leeds & Zauderer.