By Nicolas Melillo, from our Insurance Law Practice Group
May 18, 2020 — Following the state of health emergency decreed by government, and in accordance with the health measures that have been progressively imposed, condominiums have adopted measures alongside the government’s instructions.
Co-owners have witnessed the closure of all training rooms, gymnasiums, swimming pools, gardens and other common areas as a result. These measures, taken by condo associations, are in an effort to limit the spread of the coronavirus and to protect the occupants of the building. The decision to close off these areas arises particularly from the condo association’s responsibility to maintain them. The measures thus imposed have also involved reminding owners, by way of postings in the entrances of multi-unit buildings, that:
- The cleaning and disinfection of common areas is required daily and, within the realm of possibility, every two to four hours;
- There is a ban on all visitors, except in the case of a reasonable exception;
- There is a ban on gatherings;
- The delivery of food and goods is only allowed in building entrances.
What is the role of co-owners in relation to COVID-19?
The pandemic has unavoidably given rise to many questions regarding life in co-ownership. While co-owners are not legally required to disclose their medical status to their condo association, a contaminated co-owner should voluntarily take steps to notify their condo association in order to protect the other co-owners and avoid the risk of an outbreak in the building.
What is the role of the condo association in relation to COVID-19?
Should the condo association become aware of the medical condition of a co-owner, it has no obligation to notify the other co-owners. Nevertheless, some condo associations have notified co-owners of a confirmed case of COVID-19 in the building without revealing the identity of the co-owner. These notices are a clear demonstration of effective management to ensure the health and safety of the occupants of the building while preserving the confidentiality of the co-owner in question.
Likewise, a condo association aware of a co-owner’s refusal to respect the sanitary measures should act cautiously, beginning by sending a notice to the co-owner at fault and, if necessary, by contacting authorities should the co-owner ignore the notice. The negligent actions of the co-owner may well endanger the health and safety of the occupants of the building and a well-informed condo association should not remain passive when faced with such a situation.
What is the condo association’s responsibility over the common areas in times of a health emergency?
The obligation to maintain the common areas and the upkeep of the building is the responsibility of the condo association. However, it is important to specify that this obligation is one of means and not of results.
Thus, in order to limit its liability to co-owners who may have contracted the disease in the common areas, the condo association will have to demonstrate that it has taken the diligent measures necessary to ensure that the common areas are cleaned and disinfected, and, at a higher frequency than in normal times, given the pandemic. In addition, the condo association could demonstrate that it has implemented strict measures such as closing certain common areas, limiting the number of people in the elevators, as well as installing hand sanitizer dispensers.
What about condo fees?
The obligation to pay condo fees remains unchanged in the time of COVID-19. Just as tenants under their residential lease must pay their monthly rent, condominium owners must continue to pay condo fees.
Are the meetings of the Board of Directors and the Assembly of co-owners to be held?
While it may be true that meetings of the board of directors of the condo association can be held virtually, when this is provided for in the declaration of co-ownership or the internal by-laws, and that the decisions of the Board can also be made by unanimous written resolutions approved by the directors, general meetings of co-owners must be postponed due to COVID-19.
As a precautionary measure, the directors of the condo association should adopt a resolution to compensate for the fact that the general meetings cannot be held within the time limit set out in the declaration of co-ownership, if applicable. This resolution could provide that the meeting will be held later, after the confinement is lifted. In the meantime, the directors can agree to maintain the status quo with respect to common expenses while evaluating future adjustments that will have to be made to the co-ownership budget due to the pandemic.
In the meantime, a press release dated April 27, 2020, issued by the Minister of Justice and Attorney General of Québec, Sonia Lebel, announced the implementation of a new temporary measure for holding meetings, assemblies or sessions remotely where this would normally be prevented by law or regulation. This measure targets, among others, condo associations. Under this measure, the meetings will be considered valid even if they are held at a distance by technological means for the duration of the health emergency related to the COVID-19 pandemic. It will be interesting to see whether the meetings will be held in accordance with this temporary measure or if directors will prefer to wait for the lifting of the ban on gatherings.
Like any good citizen, co-owners are expected to adapt their behaviour appropriately to face the COVID-19 pandemic, to contribute to the general effort to limit the spread of the virus and, above all, to ensure the health and safety of the other occupants of their building. The condo associations are making strong efforts in ensuring that co-owners are safe in their homes, that they be prudent, and comply with instructions issued in their building.