Ryan Kennedy headshotRyan Kennedy

Kennedy is an Associate with a focus on Real Estate and Litigation practicing out of Dunlap Bennett & Ludwig’s Tyson’s Office.

[3.19.2020, Tysons VA]  As the Center for Disease Control (CDC) rolls out new guidance for how to deal with the novel coronavirus (COVID-19), the question naturally arises for those living in a homeowners association or condominium: What should we do in our own community?  Boards and property management companies are likely wondering what they should be concerned about.  Many communities own a pool, a meeting house, playground space, a small gym, or other common areas.  How to implement the CDC’s recommendations is a decision that will vary from community to community, but every community should try to do as much as what is considered sensible.

It is very likely that restrictions on the size of public gatherings—if in force in your state—will apply to association events within the common areas of your community. However, even if there are no express rules in that regard, the CDC recommends canceling or postponing community events such as Easter egg hunts and cookouts. If such events must take place, encouraging social distancing at such events, or postponing or canceling association-sponsored events, may be the best legal option for protecting your members’ health.

Your board most likely does not have the power to ban an individual from common areas due to health concerns nor to direct anyone into quarantine.  Ultimately, such actions would not likely stand up to legal scrutiny. Even if your association did have that power, it would not be able to act quickly enough anyway, based on what we know of the incubation period of the virus.

Additional questions specific to common ownership communities may bubble to the surface as this public health crisis continues.  For example, if your association has a board meeting scheduled during this time, carefully re-read your bylaws.  Meetings require quorums and often governing documents spell out specific procedures to be followed before meetings can be re-scheduled.  If an open meeting might need to be postponed, carefully consult the rules and the laws of your state to determine if a postponement is an option and if so, if there are other options such as a telephonic or web meeting, or remote voting. Consult your governing documents or legal counsel to determine whether you can reschedule the meeting on short notice when conditions change, or if a meeting can go forward if a quorum is not present.  If certain urgent actions must be taken, consider whether the Board can act via written consent, rather than a formal meeting. Don’t assume that improper meeting notices or expired proxies will be forgiven just because coronavirus intervened.

This may also be a time when your community should be mindful of its resources and evaluate the strength of its finances.  Individuals who are forced to take time off from work without pay are often quick to fall behind in their dues.  Should late fees be waived?  Should accounts go to collection?  If the delinquency rate rises, does the community need to ask for help protecting its FHA certification?  With less income from dues and community events, does your condo or HOA have enough reserves it can turn to, if necessary?

Finally, the added expense of properly cleaning common areas, keeping hand sanitizer and soap in stock, and extra attention from property managers may tempt some boards to raise dues or levy special assessments.  Make sure you are strictly obeying your governing documents if you do.  Many different legal issues can be revealed when a community goes through a stressful event.  Consultation with an attorney experienced in representing homeowners associations and condominiums may be the best first step in resolving these questions.

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Posted in: Real Estate

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