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We have seen some community association managers take the position that compliance with government ordered social distancing and stay at home orders are government problems, not community association issues. Lieberman Blecher & Sinkevich sees this in a different light. We believe that community associations cannot ignore these highly unusual public obligations.
Community Associations Must Stop Social Distancing Violations
Yes, social distancing and stay-at-home requirements are government orders. However, when unit owners are openly ignoring them, they are creating a public nuisance. Many associations have bylaws and rules that allow Boards to take measures to prevent one unit from causing harm to other properties and people who live or work in the associations. Since the potential for death represents the pinnacle of community-based harm, we believe that an association must act when it knows there are social distancing or stay-at-home violations.
Moreover, associations have obligations to maintain common elements in a safe condition. Since most violations will invariably occur within common elements, the Board’s duty to keep them safe is called into play. People who ignore distancing obligations around a parking area, community playground, or swimming pool are making these common areas very unsafe. Who more so than the Board and its manager are in a position to put an end to such dangerous conduct? The Board and manager really must act if they witness violations taking place.
While few people associate lawyers with issues of morality and fundamental decency, that comes into play here. We all understand that we must stay apart now so that we can be together soon. We all understand that even people without any symptoms may have the virus and can make people become ill or can kill their neighbors and guests. There is a clear moral imperative to stop this conduct and not ignore it.
How To Stop It
Boards and managers are faced with nuisance issues all the time, including loud noise complaints and parking complaints. What applies in those instances applies when distancing violations occur as well. Depending on the association rules and bylaws, penalties and other sanctions can be threatened and assessed. In such cases, the members may be entitled to alternate dispute resolution, when the association rules so provide. In condominiums, this is always an option.
However, often the best response to any nuisance is to call the police. Police departments have been ordered by the New Jersey Attorney General to enforce the Governor’s Executive Orders, usually by issuing a disorderly persons summons. Especially where so much is at risk, calling the police really seems to be the best option and, frankly, the one that will get the most attention from the violator.
Notice When a Unit Owner has the Virus
When a unit owner or occupant has the virus, what will the Board and manager do? If it’s clear that the sick person is appropriately self-quarantining, then perhaps nothing further needs to be done. However, if that person is known to have circulated after becoming ill, some kind of notice may make sense. Some kind of appropriate notice might even be essential in anticipation of possible legal claims judging the Board’s action following notice of potential exposure.
Federal law may prohibit releasing many specifics. However, it appears a Board might be able to inform the community as follows:
“a unit resident in the vicinity of a _________Street was ill and that person may have circulated among other residents for a given period. Persons who were out and about in that general vicinity and are experiencing coronavirus symptoms should consult with a medical professional.”
Not much more than this can be shared and the Board and manager must guard against improper dissemination of incorrect information. Board and managers may have tort liability if they act improperly in this regard.
Speaking of litigation, virus related litigation will be coming soon. Boards and managers will be judged by the manner in which they handle these situations. While the business judgment rule gives Boards a lot of authority, it is not boundless. Especially when privacy issues and human health concerns are part of the equation.
Boards must rely on that greatest governing tool ever: common sense. Since none of us have experienced anything quite like this virus before, Boards cannot do more than act reasonably under difficult circumstances. When in doubt, be sure to consult with association counsel for advice.
This blog is prepared by Lieberman Blecher & Sinkevich, a firm with years of experience representing community associations and unit owners in a variety of community association matters. This blog is prepared for general information purposes only and by no means substitutes for or constitutes legal advice.
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