Reopening New York City Co-Ops and Condos in a COVID-19 World

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On April 26, 2020, New York State Governor Andrew M. Cuomo announced a four-phase approach for reopening New York industries and businesses, including several that directly impact co-ops and condos like construction, real estate and recreation. Eligibility for reopening the State’s ten regions is being determined by public health factors, including each region’s new COVID-19 infections, health care system, diagnostic testing, and contact tracing capacity. On May 29, 2020, Governor Cuomo announced that New York City is on track to start reopening on June 8, 2020. As we approach the first phase of reopening in New York City, there are a number of issues and concerns for co-op and condo boards and managing agents to consider as they navigate the pandemic and its aftermath.

Setting COVID-19 Building Rules and Regulations

Boards, managing agents, and building counsel should start working together now to update and revise building rules and regulations in anticipation of reopening. The goal should be to protect the health and safety of building residents, staff, visitors and others in the building. While it is impossible to guarantee a COVID-19-free building, rules and regulations can be adopted to help prevent the virus from entering and spreading within co-ops and condos.

Buildings may set their own COVID-19-related rules and regulations, as long as they are at least as restrictive as applicable laws and Executive Orders. Many buildings may choose to set even stricter rules and regulations than those imposed by the government, and boards may alter or eliminate them as circumstances change. Regardless of the level of stringency, all building rules and regulations must be authorized by and conform with the governing documents (for co-ops, the proprietary lease, by-laws and house rules; for condos, the declaration, by-laws and rules and regulations).

Because one size does not fit all, before adopting rules and regulations, boards and managing agents should consult with counsel about their building’s individual circumstances and needs, and the proper procedures for adopting rules and regulations under their governing documents. In addition, counsel should be consulted regarding considerations that may need to be given in the case of disabled residents, such as possibly granting reasonable accommodations relating to their disabilities.

Below is a summary of possible new rules and regulations to consider as your building transitions into phase one of a reopened New York City. This summary is based on guidelines provided by governmental authorities and Executive Orders of Governor Cuomo, and should not be considered an opinion on the legality or enforceability of the rules and regulations discussed. These are uncharted waters and the extent to which pandemic-related restrictions may be upheld by a court remains to be seen.

Apartment Alterations and Other Building Construction

Staff may require all persons seeking entry into the building in connection with apartment alterations or other construction-related purposes (i.e., construction workers, construction managers, architects, engineers and/or designers) (collectively, “Construction Persons”) to complete and sign a visitor certification form (the “Certification Form”) that asks the following questions immediately upon entering the lobby:

1. Have you been diagnosed with COVID-19 or had any symptoms of COVID-19 (dry cough or shortness of breath, fever, chills, repeated shaking with chills, muscle pain, headache, sore throat, loss of taste or smell) and/or exhibited any other flu-like symptoms or respiratory issues within the past 14 days?
2. Have you traveled by airplane internationally or domestically for any reason or traveled out of state by any means for personal reasons in the last 14 days?
3. Have you had close contact (6 feet or less for 10 minutes or more) with or cared for someone diagnosed with COVID-19 or who had a possible case of COVID-19 (with any of the symptoms listed in question 1 above) within the last 14 days?
4. Have you had close contact (6 feet or less for 10 minutes or more) with anyone who has traveled by airplane internationally or domestically for any reason within the past 14 days?

In addition to these four questions, the Certification Form should request the full name, cell phone number, e-mail address and company name of Construction Persons for contact tracing purposes. Staff may deny entry to any Construction Persons who answer “yes” to any of the above questions and/or refuse to provide their complete contact information.

Staff also should ensure that all Construction Persons wear a face-covering that covers their nose and mouth and sanitize their hands in the lobby before proceeding further into the building. We recommend that hand sanitizing products be made available and clearly displayed at building front desks. Staff should deny entry to any Construction Persons who refuse to wear a face-covering and/or sanitize their hands.

Moreover, staff can communicate other applicable rules and regulations to Construction Persons upon their entry into the building. Those rules and regulations might include requirements to maintain a physical distance of at least six feet with all persons in the building, and to coordinate elevator use, delivery of materials and equipment, and removal of trash and debris with staff so as to limit elevator use and their movement throughout building common areas. Some buildings are limiting the number of times Construction Persons can enter and exit the building to once a day. Construction Persons also should be given instructions as to the particular elevator and bathroom they can use. Ideally, staff would communicate the rules and regulations orally and then provide written copies to each Construction Person. We do not recommend that staff be asked to take the temperatures of Construction Persons.

Once Construction Persons are permitted to proceed past the lobby, it may be difficult to ensure continued and strict compliance with COVID-19-related rules and regulations. Some buildings are monitoring the behavior of Construction Persons by using surveillance cameras in building common areas (like elevators and hallways), and/or by hiring security guards from an outside security company. If, for example, Construction Persons are working in an apartment and are required by building rules and regulations to stay within the confines of the apartment at all times other than when they arrive at the start of their work day and leave at the end, having security cameras or guards in place may deter Construction Persons from taking breaks or otherwise lingering in hallways, stairwells or other common areas, and from entering any common areas without a face-covering.

Another option designed to help ensure that Construction Persons abide by COVID-19 building rules and regulations is to impose monetary fines against the shareholders/unit owners whose Construction Persons do not comply (provided the building’s governing documents authorize fines). Buildings’ form alteration agreements should be amended to address the costs of surveillance cameras and security guards, fines and new building rules and regulations. With respect to existing alteration agreements, addendums should be prepared to address such costs, fines and rules and regulations before the alterations are permitted to resume.

Other Outside Visitors

Visitors, guests, real estate brokers, nannies, housekeepers, care givers, dog walkers, food delivery, newspaper delivery and other non-resident persons seeking entry into the building (collectively, “Outside Visitors”) can be required to wear a face-covering that covers their nose and mouth when in building common spaces, and to sanitize their hands in the lobby before proceeding further into the building. Outside Visitors also can be required to complete and sign the Certification Form. Like Construction Persons, Outside Visitors can be denied entry into the building if they refuse to comply with any rules or regulations and/or answer “yes” to any question in the Certification Form. Other rules and regulations for Outside Visitors might include maintaining a physical distance of at least six feet with all other persons in the building, and limiting their movement throughout building common areas. Further, food, pharmacy, newspaper and other similar deliveries or pick-ups can be limited to the building’s entrance area, to minimize the number of people throughout the building.

As with Construction Persons, rules and regulations may authorize the imposition of monetary fines against the shareholders/unit owners whose Outside Visitors do not comply with the building’s COVID-19 rules and regulations.

Repairs and Maintenance Within Apartments

Many buildings required residents to defer all non-emergency repairs and maintenance within their apartments. When non-essential construction is permitted to resume in New York City, buildings may wish to allow building staff to proceed with non-emergency repairs and maintenance within apartments, including maintenance to HVAC units. To protect both residents and staff, we recommend that buildings provide staff with all appropriate personal protective equipment, including masks, gloves and shoe coverings. In addition, staff should be instructed to sanitize their gloves before entering apartments, maintain physical distance from residents, and only touch those surfaces in the apartments necessary to perform the repairs and maintenance.

Amenities

Many buildings are considering when and how to reopen their amenity spaces such as roof decks, outdoor courtyards and terraces, gyms, pools and children’s playrooms. Prior to reopening amenities, buildings should carefully consider whether amenity spaces should be reconfigured to enable physical distancing, whether limitations should be imposed to restrict the number of residents permitted at any one time, and how often the spaces should be cleaned. Reopening outdoor amenities should be given priority over indoor amenities. In addition, consideration should be given to setting aside particular hours during which residents who are 60 years of age or older may have exclusive use of amenity spaces.

In-Person Apartment Showings

On May 28, 2020, Governor Cuomo issued guidelines for in-person residential property showings and related activities, which will be permitted to resume during phase two of New York State’s reopening plan. Boards should consider implementing rules and regulations consistent with those guidelines, which provide:

• Showings are only allowed in unoccupied or vacant properties (e.g. current owner or lessee is not inside the property).
• All individuals visiting the property will be required to wear a face covering at all times.
• Replace or clean and disinfect gloves after every showing (as applicable).
• Clean and disinfect high-touch surfaces (e.g. handrails, door knobs, etc.) before or after every showing.
• Stagger showings in order to avoid the congregation of people outside and inside properties.
• Open houses are only allowed with one party inside the property at a time.

As you consider changes to your building’s rules and regulations, also consider that many COVID-19-related rules and regulations should remain in place for the foreseeable future, including requirements for physical distancing and wearing face-coverings in common areas, hand sanitizing upon entry, and limiting elevator use to one household at a time.

Since every building is unique, some of the issues and concerns above may not apply to your building. There also may be other issues and/or concerns specific to your building that we have not addressed.