Association guidance during the pandemic: Boards must come together while Unit Owners stay apart

In this rapidly changing environment it is more important than ever that Boards stay informed and communicate with Unit Owners about actions that are being taken by the Board with respect to the current health crisis.

Part of a Board’s fiduciary duty of care to Unit Owners in an association is to protect the health and welfare of the Unit Owners. Just as there cannot be a massive and dangerous hazard in the middle of a common area road, the Board cannot turn a blind eye, allowing conditions that may jeopardize the safety of Unit Owners within parts of a property that fall under a Board’s responsibility. Just as a Board must take steps to prevent damage from rain and severe weather, Boards should affirmatively consider whether conditions on the properties are properly set up to protect against loss of life. 

There has been a lot of conversation over the past week about risks of Unit Owners. Many associations have made difficult decisions to close down common spaces where multiple Unit Owners may gather, such as clubhouses and gyms. With governmental mandates limiting gatherings, Boards should take affirmative steps to limit situations where gatherings occur. Boards should likewise facilitate common sense measures such as sanitizer and wipes around door knobs and mailbox areas. It is strongly recommended that Boards consult with their professional management and advisors to discuss how best to communicate and administer these measures. Either way, Boards should always err on the side of safety if there is any question.

The key here is that the Board should be working to disseminate information to keep Unit Owners informed. It is recommended that Boards consider implementing an “emergency” plan that will cover the time period of government-suggested social isolation and identify the steps that the Board has taken in response to those concerns. Items to cover in those communications should include:

• Providing an understanding for the frequency and nature of the common area cleaning; and
• Suggesting that Unit Owners relay to guests the restricted movements through common elements. 

However, Boards must be careful not to implement rules that restrict legal rights of Unit Owners to utilize their Units and to have guests in their condominium. Many of the items set forth in the communication would need to be in the nature of suggestions rather than mandates. In the end, Unit Owners are looking for some communication and reassurance from Boards that, at minimum, the Board is aware of issues to be addressed.

What about meetings? Please refer to the article in this newsletter written by my colleague Jamie Stevens about working to properly notice and conduct Board business remotely. Also, this is a great time for Boards to start looking into electronic voting for annual meetings. Clients and management companies have successfully introduced this technology in recent years and implementing it has been shown to increase participation at annual meetings.

This Chuhak & Tecson, P.C. communication is intended only to provide information regarding developments in the law and information of general interest. It is not intended to constitute advice regarding legal problems and should not be relied upon as such.

Client alert authored by: David J. Bloomberg, Principal