Lifting Restrictions: Considerations for Condominium Boards
The Government of Ontario recently announced the details of phase 1 of the province’s re-opening strategy. As of yesterday, some businesses that were previously deemed non-essential were permitted to open, subject to certain operating restrictions to ensure proper physical distancing.
Although the Government of Ontario is easing certain restrictions, each condominium corporation must consider whether these measures are appropriate for its own community. As the province continues to move towards a complete re-opening, boards must carefully consider what activities should be permitted and what amenities can be re-opened with reasonable precautions. In our view, boards must plan and react to the changing circumstances while balancing the security and safety concerns of residents against the desire to maintain individual liberty and autonomy.
We have seen some owners threaten their condominium corporations with legal action for imposing restrictions that are stricter than those of the Ontario Government. However, we see these additional restrictions as largely reasonable efforts to protect the health and safety of residents.
To determine what, how, and when certain restrictions may be eased, in our view, boards must consider the following:
The character (e.g. high-rise, low rise, townhouse, etc.) and density of the condominium;
The physical size of the condominium and its particular features/amenities;
The previous restrictions implemented by the board to limit the spread of COVID-19;
The demand in the community for certain activities to resume or for certain amenities to re-open;
The safety of residents; and
The directives from various levels of government and health agencies.
We address below some areas of concern/topics that have been raised by our clients. As each condominium community is unique, these considerations are not ‘one size fits all’ solutions and we strongly encourage boards to consult with legal counsel prior to making a decision about how and when certain activities or amenities may reasonably be permitted to re-open.
Re-opening Amenity Areas
Physical Distancing – Amenity areas where physical distancing measures can be maintained should be among the first amenity areas to be re-opened.
Lobby Seating – Consider the size of the lobby and whether other activities (such as parcel pick-up) may be impacted if lobby seating is permitted. If seating is provided, consider how often it will need to be cleaned.
Indoor vs. Outdoor – Consider whether the amenity is indoor or outdoor and how that might impact its use (e.g. outdoor amenity areas may permit residents to more easily maintain physical distancing). Boards will need to ensure any re-opened amenity area can be effectively cleaned and sanitized at regular intervals.
Guest suites – Consider the frequency and type of cleaning required between guests. Boards should consider whether a waiver is required of guests to acknowledge that, despite the condominium corporation’s best efforts, it is possible that the COVID-19 virus could be present in the guest suite.
Renovations and Repairs
In-suite – Encourage residents to limit renovations to only "essential" renovations required to ensure that the unit is habitable. Consider what restrictions can be put in place to ensure that renovations are the least disruptive (e.g. limiting the number of contractors, in-out privileges, and hours of operation).
Common Elements – Consider the impact common element renovations may have on a resident's ability to maintain physical distancing. We expect that exterior common element projects, such as roof replacements, cladding work and paving can proceed without issue, but indoor renovations, such as hallway refurbishments, may be more inconvenient to residents.
Visitors
Non-essential – Service providers, such as cleaning and dog walking services, are permitted to operate. Consider what, if any, special requirements these service providers will be subject to. Keep in mind that, like delivery personnel, these service providers may be frequently going from one building to another.
Masks – If a board is permitting visitors in the building, consider if visitors will be asked to wear a mask. If so, the condominium corporation should be prepared to provide a visitor with a disposable mask.
Screening – In our view condominium corporations can enact reasonable screening requirements. This would include having security personnel/concierge ask a number of screening questions to visitors to prevent potential COVID-19 carriers from entering the premises (e.g. has the individual arrived from abroad in the last 14 days or have they exhibited certain symptoms, such as coughing). The board should also consider whether it has the capacity to maintain a record of visitors to assist in contact tracing.
Real Estate Showings
Virtual Tours – Owners should be encouraged to hold virtual real estate tours because they will limit the number of agents and prospective purchasers from attending the property. These tours are relatively inexpensive to organize and make available.
In-person Showings – if the board is willing to permit in-person showings, consider how the showings will be arranged or under what conditions the board would be willing to permit them.
While residents are likely anxious for the condominium community to get back to "normal", the board should, in our view, carefully consider the factors set out above prior to lifting restrictions and re-opening their communities. Boards should carefully plan what the re-opening of their condominium community will look like, possibly creating a phased plan similar to that of the Ontario Government.
As we pull out of lockdown, boards should be shifting their messaging from imposing strict restrictions to urging people to reduce the risks in their condominium community. COVID-19 is not going away anytime soon, and it has become obvious that people cannot stay locked down in their homes forever. In other words, a harm-reduction - rather than prohibition - philosophy eventually needs to be embraced that may not eliminate, but will minimize, negative impacts of particular activities and reduce risk to residents.