Control the Flow: How to Regulate Outsiders During a Health Crisis
In early April 2020, a Manhattan co-op prohibited the brother of one of the building’s owners from staying in his unit. According to the New York Times, the brother, a physician, had traveled to the city from rural New Hampshire to volunteer his services in the battle against the coronavirus.
This incident may have struck some as just another example of New York City co-op craziness, but, in the face of the coronavirus, many community associations have considered restrictions on guests.
“You can’t completely prevent outsiders from coming in because some are permitted by government orders,” says Kevin Hirzel, managing member of Hirzel Law, PLC, a Michigan-based firm that works with community associations. So how far can your clients go in limiting access during a public health emergency?
“Overall, during a ‘temporary’ emergent situation, an association probably can restrict occupancy to permanent residents, except for the situation involving a caregiver to a resident,” says Michael Kim of Schoenberg Finkel Newman & Rosenberg, LLC in Chicago.
An association’s ability to limit occupancy might depend on the type of association, though. “I think it’s difficult for a condominium or homeowners association to restrict family members from staying over,” Hirzel says. “Most governing documents don’t contain such a prohibition.
“However, if they have a provision that prohibits illegal activity and having a family member stay over would violate an executive order, I think they would be in a position to do so. In my opinion, a co-op would be in a better position to do this than a condo or HOA, as the co-op is the actual owner of the building and the owners only own stock, not a property interest.”
The New York co-op had created a variety of rules for dealing with the pandemic, including one that allowed only residents, family members, nannies, and home health care aides into the building. The doctor clearly was a family member, but the building superintendent told him the board feared him bringing in the virus.
That rationale could constitute unlawful discrimination in some states, such as Illinois. Kim cites a recent statement by the Illinois governor that discrimination against healthcare professionals wouldn’t be tolerated.
In the context of the coronavirus, though, associations seem to be focusing their restrictions not on occupants or health care workers but on delivery persons and contractors who could bring the virus on-site.
Package and Food Deliveries
A surge in the volume of package deliveries during a public health emergency is of particular concern in multi-unit buildings. And owners aren’t the only ones who worry — managers need to protect their staffs, too.
“For the most part, we’ve been able to sort of limit the amount of handling of packages,” says Katie Anderson, CEO of Aperion Management Group, LLC, which manages about 65 associations in Central Oregon. “We make sure our staff has the right protective gear to handle it, with gloves and masks.”
Others have gone even farther. “We want you to limit to the extent humanly possible the number of staff members who are touching packages,” says Sandra Gottlieb, a founding partner of California homeowner association law firm SwedelsonGottlieb.
“We set up a table in the lobby. Delivery people put the package down where staff can see the label and contact the owner.”
Paul Grucza, director of education and client development at the Seattle-based CWD Group, Inc., reports his firm has taken a similar approach. “Delivery people can come in and drop a package on or under the table. We make note of receipt and notify the owner he must pick it up that day. If not, it’s returned to the sender.”
Stay-at-home orders also can lead to an upswing in food delivery in some areas. Not surprisingly, few associations allow delivery persons far on to the premises in such circumstances.
“Food is to be delivered right at the start of the lobby,” Gottlieb says. “It has to be prepaid, and the homeowner is alerted to come get the food. If they’ve been exposed, we’ll get it to them.”
Grucza has been impressed by owner acceptance of his firm’s tough stance when it comes to meal delivery.
“We don’t allow food deliveries into the building, and the boards are supportive of this,” he says. “Owners need to make arrangements to come down to the front door and immediately take the food back to their units. Concierges and building staff are forbidden from accepting food. If the owner doesn’t come down, they either send the delivery away or, if the food is left behind, throw it out.
“Owners have cooperated, to my surprise.”
Owners also can have concerns with contractors trekking germs through the community during an emergency.
“Most of my clients are taking the position that any discretionary construction work in a unit that involves people and materials being brought in from outside is suspended,” Kim says.
“Discretionary” can be difficult to define. For example, Kim has seen a few cases where a new owner has been staying somewhere else while the unit undergoes a gut rehab and wants to take up residence in the midst of the emergency.
“If you can control the situation so the contractors come in strictly to make it habitable — like putting the toilet and shower back in — and have them strictly observe precautions and a specific timetable, I don’t have a problem with that,” he says. “We’re trying to create a reasonable balance between necessities and luxuries.”
As with most matters prompting a reconsideration of rules and restrictions in a public health emergency, associations should always first consult an attorney to help them strike the appropriate balance among conflicting interests, duties, and responsibilities.