DEALING WITH ASSOCIATION OPERATIONS DURING THE COVID-19 CRISIS
During this time of virus-related crisis, many boards and property managers are facing mounting questions and concerns regarding the day-to-day operations of their associations. As indicated in our recent email bulletin, MEEB remains operational during this crisis and is committed to the continuing provision of legal services of the highest caliber. This note is intended to assist with some of the most common questions relating to association operations. Feel free to contact us for additional assistance regarding these and other matters.
What If a Resident Tests Positive for COVID-19?
In the event of a known infection on the property, the Board cannot (and should not) prohibit the resident from the building and/or their Unit. The Board should contact state and local boards of health and ask those officials to recommend actions to be taken relative to the infected individual. This will minimize the impact on the community, and help the Board explain its actions and the basis of its actions to the community.
Although the Board should notify residents that there is an individual(s) within the community who has contracted the virus, the Board should not disclose the name and/or address of the person infected. Doing so may be a breach of privacy and could subject the Association to potential liability.
Likewise, since the Board wants owners to alert management in the event of an infection (so proper measures can be taken) forced disclosure of a resident’s identity is likely to deter anyone else from disclosing useful information in the future. Instead, if there is a resident that is known to have contracted the disease, the Board should issue a community wide alert notifying residents that there is a case in the building, and urge residents to take proper precautions, and to seek further information and guidance from the Centers for Disease Control and Prevention (“CDC”), htpps://www.cdc.gov/coronavirus/2019-ncov/index.html, as well as:
Common wealth of Massachusetts
State of New Hampshire
State of Rhode Island
Additionally, while each resident is responsible for their own health and safety, the Board may want to discuss mitigation efforts with the infected resident to assist them with items such as deliveries and trash removal, to ensure that their contact and exposure within the building can be minimized.
Specific guidance regarding use of masks, gloves, and how to transfer packages should be obtained from the public health officials and/or their recommended protocols.
What Do We Do About Common Areas and Amenities?
In the first instance, cleaning and disinfecting common areas is a primary concern. To the extent possible, such measures should be taken with increased frequency in areas of buildings used by residents and visitors to the site. If need be, it is prudent to postpone lesser priority projects in order to devote additional efforts and financial resources to the cleaning of common areas.
Some associations enjoy clubhouses, gyms and other recreational facilities and amenities. At present, Massachusetts has declared a state of emergency. In Massachusetts, aside from school closings and social distancing, non-essential businesses are presently under lockdown orders. In both New Hampshire and Rhode Island, people are being asked to self-quarantine and/or lockdown if possible and, of course, schools are closed and social distancing recommendations have issued. Under these circumstances, we believe that the best practice is to temporarily close such association amenities. At this time, the risk of the continued spread of the virus outweighs the potential benefits of the use of such facilities. Since common areas are under the control of the board, temporary closures need only be directed by the requisite vote of the board members of any association and do not require a vote of unit owners.
How Do We Handle Meetings?
Obviously, a certain measure of association business is best conducted (or perhaps required to be conducted) at a community meeting. At this time, “normal” association meetings, aside from the apparent risks, would be in violation of the gathering limitations imposed by government officials. As of March 23rd, Governor Baker has limited gatherings to no more than 10 people in Massachusetts. In New Hampshire, Governor Sununu issued the same directive on the same date. So, to the extent possible, the best practice is to postpone association meetings or hold them in alternative manner. However, MEEB is issuing a separate article in the immediate future to discuss options available to associations for conducting urgent business.
How Do We Handle Delinquencies?
Many people are experiencing a loss or reduction of employment and, therefore, the loss or reduction of their income. This will, in turn, most certainly have a negative impact on people’s ability to meet their financial obligations. To the extent possible, MEEB advocates treating people and their situations with compassion while also balancing the need for Associations to maintain services and meet their expenses. Associations do, however, rely on assessment income for the provision of crucial services including cleaning, management fees, insurance, trash removal and others. Not acting to collect assessments could result in associations facing significant negative impacts to the community and its well-being and could, if delinquencies are allowed to continue too long, also jeopardize the Association’s lien.
Massachusetts, New Hampshire and Rhode Island have laws which enable Associations to perfect priority liens which greatly enhance the Association’s ability to recover unpaid monthly fees. However, it is critical that the statutory process in these states be followed to preserve these valuable lien rights. The state laws require certain actions to be completed within 6 months of the start of the delinquency. Based on the statutory process, meeting the 6-month deadline involves undertaking particular legal notice provisions when accounts reach 60 days of delinquency.
Boards will need to balance compassion with their obligation to protect the Association’s interests. While cases need not be driven to the full extent of the legal process, taking certain measures within the time periods designated by law will at least protect the association’s receivables as much as possible going forward.