Guests and invitees to a community may create a higher risk that the COVID-19 virus will be spread throughout the community. While some guests, such as caregivers or health care workers, are likely essential to a resident to whom they are visiting, other persons, such as social guests, contractors or non-essential repair persons, may not be essential to the health and welfare of the owners.

Some boards are considering whether to implement guest rules and even rules banning all non-residents from entering the property.  However, owners may argue that they have a right to have guests in their homes if they want them.  Boards ought to tread carefully because bans or restrictions on guests or invitees could lead to litigation. 

Legal Considerations makes Guest Bans or Restrictions Difficult

Whether your association is a cooperative housing corporation, a condominium or a homeowners association will matter.  What your governing documents say is critical.  

A typical proprietary lease for a cooperative has an occupancy provision which says who can occupy the apartment.  The provision usual says that guests are permitted for at least a month or perhaps longer, as long as a permitted adult resident is also occupying the apartment.  So, in that case, the cooperative shareholder may argue that the board is breaching the proprietary lease if the board tries to enact a rule banning or restricting guests which are specifically allowed in the lease.

Condominiums and HOAs are different.  Bylaws for those entities do not typically provide that guests are allowed or not allowed. Usually the bylaws provide that the units or homes may be used only for residential or in some instances professional or commercial purposes, but they typically do not go into detail as to whether guests are permitted or not.  This makes sense because unlike cooperatives, condo owners and HOA members own the interiors of their units or homes.  Their boards manage and govern the common elements which are shared by the condo owners and HOA members.  Adopting a rule that condo owners or HOA members can’t have guests is difficult because the board usually can’t govern what goes on inside the unit or home as long as what goes on inside doesn’t affect the common elements or the other unit or home owners. 

Perhaps a condo or HOA board could decide that all people who are not residents are a danger to the community because they may have the virus, so for the time being, all non-essential guests or invitees are not allowed to use the common areas for ingress or egress (they may touch things and contaminate them).  This is effectively a ban on all guests and invitees except essential people like caregivers or health care workers.  Condo owners or HOA members may challenge such a rule however, because as stated, they own the inside of their condos or homes and this rule would prevent them from doing so.

To make matters more complicated, the flip side of all of this is that someone who contracts the virus inevitably will complain that the board did not do enough to protect residents and should have banned or restricted guests.  In the litigious society in which we live, boards are sometimes damned if they do and damned if they don’t.  

Leave it to the Shareholders, Owners or Members

Perhaps the best approach is to have the owners make a decision for the association rather than taking it on your shoulders as the board.  The trouble is that calling an owners meeting is not only difficult during these trying times, but could be dangerous if any attendee has the virus.  In order to accommodate social distancing between attendees, you may need a very large room.  Governmental restrictions may even prevent such a gathering if the number of attendees is too large.  If your association is allowed to vote electronically, you may consider using electronic voting which would avoid these problems.  For associations that do not have the ability to electronic vote, we have recommended that owners meetings not take place for the time being because of the dangers of COVID-19.

That said, if cooperative shareholders, condo owners or HOA members decide that guests (except essential persons like caregivers and health care workers) should be banned for the time being, then such rule should be appropriate.  Enforceability, however, is another complicated issue.  Can you fine?  Can you physically stop a guest?  Do you have to hire security guards?  Again, your governing documents, or the rule passed by shareholders, owners or members should cover your board’s ability to enforce such a rule.  

In sum, guest bans or restrictions are complicated.  A board that wants to restrict guests or invitees ought to get sound advice from management and counsel before moving forward.