Marc Schneider and Justin Buchel For Habitat Magazine
Laying down the law. As the coronavirus pandemic passes the one-year mark, co-op and condo boards are facing a pair of challenging questions: How far must a board go to enforce state and local laws and its own COVID-related house rules? And What are a board’s options when a shareholder or unit-owner fails to comply with laws or rules?
Many boards have struggled with the extent to which they must become COVID Cops. If masks are required in all public spaces, should the same apply to indoor co-op and condo common areas? We believe the answer is yes, which is why most of the boards we represent immediately enacted COVID emergency house rules that require wearing masks in common areas, social distancing in tight spaces (elevators, mailroom, etc.), restrictions on showing apartments as well as the closure of amenities (gyms, party rooms, pools, clubhouses, etc.). By doing this, boards were able to treat residents who weren’t following basic COVID protection guidance as violators of the co-op’s or condo’s governing documents.
Enforcing the law. But now that they have enacted the rules, what should boards do when people ignore them? Since the pandemic started, we have seen boards being flooded with complaints about other residents who are violating COVID safety measures. “John is not wearing a mask!” “Mary and Jane rode the elevator together even though they don’t live in the same household!” In our opinion, provided your board enacted proper house rules and regulations, you can legally enforce them in the same manner you would enforce any other violation of a house rule. If your governing documents give the board the legal power to levy fines, we recommend you use it. If your board is disinclined to do so, you should at least send warning notices or have the community’s attorney send a legal cease-and-desist notice. In whatever manner you proceed, we believe boards are within their legal right to enact and enforce basic COVID safety rules – and, in effect, become the COVID Cops of the community. If the violation is serious enough, such as a COVID-positive person walking around the building without a mask when that person should be quarantining, your board should take the necessary steps to stop the violation, which may even require taking the person to court.
Bending the law. But what if your board doesn’t have an appetite for assuming the role of COVID Cop? We believe that, in some instances, that’s OK, too. Board members are volunteers, and they typically have no obligation to go hunting for violators of the rules. However, that doesn’t mean board members can turn a blind eye. If a violation is obvious and either proven by photo or video evidence, or supported by witnesses, it should be addressed. But we do not believe boards need to set up stakeouts to catch people in the act of violating the rules. It’s impractical, if not impossible, for boards to ensure that all residents comply with COVID safety protocols every moment of the day. Moreover, such extreme measures are rarely necessary since, in most instances, the residents of the community will let the board or management know if they see a constant violator.
Regardless of the extent to which your board is willing to play COVID Cop, you should adopt house rules in accordance with the governing documents and make residents aware of those rules and any penalties for violating them. You should also advise residents that if they see someone violating those rules, they should say something to management or the board so it can be addressed.
Marc Schneider and Justin Buchel are partners at the law firm Schneider Buchel.