New York: Impact of COVID-19 on Homeowner Associations
April 22,2020
New York: Impact of COVID-19 on Homeowner Associations
While COVID-19 continues to keep us quarantined, several executive orders have been issued that directly impact our daily operations, specifically as regards real estate and homeowner associations:
Executive Order 202.8, Effective Through April 19, 2020
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Tolls all time limits for the commencement, filing, or service of any legal action, notice, motion, or other process or proceeding under all applicable laws, rules, and regulations. This tolling applies to all actions or special proceedings that would otherwise be commenced by the New York Attorney General, as well as private-party disputes involving real estate securities; and
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Except those that provide “essential services,” all businesses and not-for-profit entities in New York must reduce in-person workforce’s by 100% no later than March 22 at 8:00 p.m. The Governor has already publicly stated that this applies to the in-person showing of apartments.
The Governor has since issued Executive Order No. 202.14 which extends the tolling date from Executive Order 202.8 through May 7, 2020. At this time, it is unclear whether those dates will be extended further as NY Courts are beginning to hear non-essential matters electronically (via Skype) and have said that they will begin to issue decisions on matters that have been fully submitted. Notably CPLR 2219(a) provides that an order determining a motion shall be made within sixty days. Should a court fail to comply with this rule, any party to the action can commence an article 78 proceeding to compel the judge to file a decision, however in light of the tolling provision of the executive order, there have been numerous questions raised regarding the timing of the stated tolling. That notwithstanding, as NY practitioners, most, if not all of us have not received a court order/decision since early March.
As cases of COVID-19 increase here in the US, a number of questions from condominium boards are being raised. Two of the most common are:
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What should we do to protect the condominium and its members?
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What is our responsibility for the clubhouse, pool, workout area, playground, plumbing, HVAC system?”
While condo boards should be vigilant, there are limits on what can be done to fight the virus. While the situation should be taken seriously, there’s much that isn’t yet known. Early theories posited that the virus might have been transmitted in cruise ships and apartment buildings through HVAC circulation or plumbing systems, but nothing has been proven. Several recent cases have no clear origin, leaving the medical community with little ability to provide direction on prevention methods.
As NY continues to be a “hot spot” for the virus, with an ever increasing number of cases (although the curve is starting to even out), we are beginning to see claims alleging that homeowner associations are responsible to mitigate the spread because they control the condominium’s common areas. Based on those allegations, we anticipate seeing the following increased obligations needing to be undertaken by homeowner association boards, and failure to do so, may lead to liability (and not just for COVID-19 but for other contagious illnesses, as well):
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More frequent, and extensive cleaning, disinfecting, and wiping down of common areas and common area surfaces.
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Gatherings in the common areas, whether a membership meeting or educational event, may need to be postponed or canceled.
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Public common areas such as gyms, clubhouses, and pools, may need to be temporarily closed.
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Limiting access to common laundry rooms/facilities
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Controls and/or limitations on the number of people that can access elevators at one time
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The association may wish to consider the installation of hand sanitizer dispensers or wipes in common areas for owner and guest use. (notwithstanding the fact that the cost of sanitizer gels has tripled and product is being rationed in some areas.)