COVID-19

March 30, 2020 Published by CCI National - By James Davidson - Davidson Houle Allen LLP

COVID-19: Some General Thoughts for Condo Boards

These are exceptional, critical times for condominium corporations. Condominiums are at the very heart of the COVID-19 crisis, because they are potential “hot spots” for the transmission of the virus. What does this mean for condominium Boards and their Managers? What is their overall obligation at this critical time?

These are exceptional, critical times for condominium corporations.  Condominiums are at the very heart of the COVID-19 crisis, because they are potential “hot spots” for the transmission of the virus. What does this mean for condominium Boards and their Managers? What is their overall obligation at this critical time?

In my view, condominium Boards and Managers have a vital role to play in this crisis, because the Boards are mandated to control the common elements and to take reasonable steps to keep them safe. To me, this means that condominium Boards (assisted by their Managers) should be deciding and directing how things will happen on the common elements in order to address the specific risks and challenges brought by the virus.

Here are my more detailed thoughts:

1. Condominium corporations are mandated to control, manage and administer the common elements (per Section 17 (2) of the Condominium Act).

1. Condominium corporations are also the occupiers of the common elements for purposes of occupier’s liability (per Section 26 of the Condominium Act).

1. Therefore, each Board should be carefully considering the “COVID-19 issues” for the particular condominium and then deciding how safety is to be reasonably maintained in relation to activities on the common elements.

1. I don’t mean to say that a condominium corporation must do things in a particular way. Each Board will need to decide what procedures make sense – for safety – on their common elements. Furthermore, the safety issues and the identified options can vary from condominium to condominium and from Board to Board. Each condominium may have its own safety issues; and each Board may have different options for how to address those issues.

1. The key, in my view, is that each Board needs to be thinking about these issues (giving these issues careful, reasoned consideration) and deciding how activities will occur on the common elements in order to manage the safety issues in that condominium.

I would summarize my overall views on this as follows: I think it’s up to each Board to meet and discuss the COVID-19 issues in their condominium; and then decide – based on safety considerations – how things are going to happen on their common elements during the crisis.

This is what I would offer as a step-by-step guide to condominium Boards:

1. First and foremost: Remember that you are mandated to control, manage and administer the common elements of your condominium. You are responsible to decide how to keep the common elements reasonably safe. Put another way, you are mandated to decide and direct how things will happen on the common elements in order to reasonably maintain safety in your community.

1. As a first step: I suggest that you Schedule a Board meeting to discuss the COVID-19 issues in your condominium. [Right now, this would probably be an electronic meeting.]

1. At the meeting, start by making a list of the COVID-19 issues in your condominium.

1. For each issue, consider: How does this issue affect safety on the common elements? Who is at risk? What options are available to address the issue?

1. In each case, there may be many options to consider, such as:

• THE MOVEMENTS OF RESIDENTS AND INVITEES

Developing new protocols or restrictions in relation to movement of people on the common elements.

• DELIVERIES

Developing new protocols or restrictions in relation to deliveries to and from the units.

• THE ROLE OF STAFF

Perhaps having the Corporation’s staff play a revised role in relation to deliveries or in relation to helping persons who are quarantined or have tested positive. [At the same time, it is of course necessary to consider the steps to be taken to keep the staff reasonably safe as they fulfill their functions.]

• EDUCATION

(a) Posting notices about the new protocols for the benefit of anyone on the common elements.

(b) Providing separate notices to owners and residents about the new protocols.

• CLEANING

Making changes to the cleaning of the common elements, including changes to the frequency of cleaning, the methods used, and the products used.

• ENLISTING OTHER HELP

MAYBE forming a task force or Committee to help residents with all of the new protocols.

MAYBE forming a task force or Committee to connect with people who are feeling disconnected, or fearful or otherwise uncomfortable during the crisis.

If there is to be such a task force or Committee, consider the steps to be taken to try to help enhance safety around the activities of that Committee…..like making sure that the Committee Members reasonably understand how to manage the risks.

• VOLUNTEERS

Alternatively, perhaps leave some issues in the hands of volunteers who are acting independently from the Board (bearing in mind that the condominium corporation could nevertheless be responsible for what those volunteers do or don’t do on the common elements).

• GUIDANCE FROM HEALTH OFFICIALS

Try to be familiar with guidance offered by health officials….and provide that information to others (like staff, committee members and/or volunteers) as appropriate. Guidance from the local Health Department can also be extremely helpful in terms of listing recommended options and protocols.

1. When considering each option, ask yourselves as Board members: What do we feel is the most reasonable option by which to maximize safety (and minimize risk) for our residents, staff and others on our property?

1. Then, implement your chosen options.

1. When desired, seek expert advice or assistance and thereby trigger the protection of Section 37 (3) of the Act.

1. Most importantly: Be sure not to leave these decisions in the hands of others. You may of course decide that it is best to leave some activities in the hands of others (like volunteers). But in my view, you should be making a reasoned decision to allow this, based on considerations of safety. Again, the corporation is in control of the common elements – particularly when it comes to maintaining safety. So, it’s up to the Board to consider and decide (based on safety considerations) how things will happen on the common elements in your particular community.

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