Swimming Pools and COVID-19

As states begin to slowly reopen, the question as to whether pools will open for the summer has become a hot topic. For states that have been hit hard with COVID-19, it is likely that public pools will remain closed for the rest of the summer. However, some states are permitting public and private pools to open/reopen for the summer months with strict guidelines.

Per the CDC’s website, “there is no evidence that the virus that causes COVID-19 can be spread to people through the water in pools, hot tubs, spas, or water play areas. Proper operation and maintenance (including disinfection with chlorine and bromine) of these facilities should inactivate the virus in the water.”

The CDC’s Water and Covid-19 FAQ website further stated that “it is important for individuals as well as owners and operators of these facilities to take steps to ensure health and safety: Everyone should follow local and state guidance that may determine when and how recreational water facilities may operate. Individuals should continue to protect themselves and others at recreational water venues both in and out of the water – for example, by practicing social distancing and good hand hygiene. In addition to ensuring water safety and quality, owners and operators of community pools, hot tubs, spas, and water play areas should follow the interim guidance for businesses and employers for cleaning and disinfecting their community facilities.”

The CDC has offered considerations to help keep public pools safe during COVID-19. The CDC considerations cover good hygiene, face coverings, adequate supplies, signs, cleaning and disinfecting, modified pool deck layouts, physical barriers and guides, safe and healthy operation of pool staff, and a preparedness policy for when someone gets sick.

For the states that are permitting public and private pools to reopen, strict guidelines are being set in place. Some examples of strict guidelines include:

  • Reducing occupancy limits to permit one person to use the pool at a time regardless of pool size;
  • Prohibiting gatherings of any size on pool decks, with the exception of parents/guardians for when minors are using the pool;
  • Prohibiting the use of all outdoor pool furniture (pool furniture to be stacked/chained to render use unusable);
  • Prohibiting the use of drinking fountains and showers;
  • Social distancing measures;
  • Requiring the use of face masks when not swimming;
  • Hand washing/sanitization stations;
  • Frequent sanitation of high touched areas such as hand rails, restroom surfaces, light switches, faucets, door knobs, gates, etc.; and
  • Continuing to maintain pools in accordance with laws and regulations to ensure proper chemicals and safety measures.

Of course, as every state is implementing its own protectionary measures, it is vital that Cooperative Boards reach out to their Cooperative Attorney for assistance with interpreting Executive Orders with respect to opening/reopening pools

For Cooperatives, the reopening of the pool does not come without concerns. Such concerns include:

  • Suspending of the Community Pool rules that are currently in place;
  • Drafting of temporary pool rules complying with Government Mandates for pools due to COVID-19;
  • Restrictions of member’s guests to use pool for health concerns;
  • Opening of the pool by pool contractor;
  • Obtaining chemicals;
  • Ability to obtain and maintain pool cleaning chemicals;
  • Enforcement issues of the temporary Community Pool rules due to COVID-19;
  • Hiring of a Lifeguard or informing members to swim at own risk;
  • Reducing pool occupancy to one swimmer at a time;
  • Limiting the time frame that a member can use the pool;
  • Keeping the pool deck, shower, and drinking fountains closed;
  • Social distancing issues regarding members waiting to use pool; and
  • Cleaning of surfaces that are regularly going to be used (i.e., doors, gates, pool handrail, etc.).

Cooperative Boards should work closely with their Cooperative Attorney to ensure that any temporary pool rule due to COVID-19 complies with local, county and state guidelines in addition to any and all guidelines and considerations set forth by the CDC.


Alyssa Gunsorek is an associate attorney with experience in contract negotiations. She has contributed articles for various publications including the MAHC Messenger, NAHC’s Housing Cooperative Quarterly, and Pentiuk, Couvreur & Kobiljak’s Cooperative Law Journal.

 

Carrying and Occupancy Charge Obligations During COVID-19

It is fair to say that by now, every single American and business across the country has felt the impact of the SARS-CoV-2 (COVID-19) virus, commonly known as the “novel coronavirus.” On March 11, 2020, the World Health Organization (“WHO”) declared the coronavirus a pandemic. Since then, the United States has been one of the most impacted countries. Through a number of federal, state and local governmental orders, schools have been forced to close, courts are temporarily closed, “non-essential businesses are closed, and many areas are faced with mandatory “stay-at-home” orders. While these measures are being taken to alleviate the spread of the virus, they have also come with a corollary rise in unemployment that is likely to affect many housing cooperatives, community associations, and the like.

Many anticipate that community associations, including housing cooperatives, will soon begin experiencing an increase in delinquency of assessments, rents and monthly carrying charges. Given the nature of the current events, and how the world has changed due to the coronavirus pandemic, questions arise as to how should a Condominium Association or Cooperative Housing Corporation enforce their collection policies. Despite the passing of the Coronavirus Aid, Relief and Economic Security Act (“CARES Act) (S. 748), we anticipate further guidance to be issued that will hopefully provide non-profit corporations and cooperative housing corporations with various levels of economic and hardship relief. In the meantime, we recommend continuing to enforce current collection policies, with a few caveats.

Housing cooperatives and their agents should maintain open communications with their members. Especially in this particular time of national crisis. Housing cooperatives should not discourage members from communicating with the board of directors, or management, as to economic hardship.

The undeniable fact is that the current coronavirus pandemic has, or will, place many individuals and families in financial hardship. Given that many courts throughout the country are closed, issuing a Notice to Quit or Demand for Possession and filing a lawsuit will be futile for obtaining immediate relief. In fact, the CARES Act contains a moratoria on evictions of tenants in certain properties that are classified as “other covered housing,” with certain tied to HUD programs.

By being receptive to member’s open communications about financial hardship, alternatives such as repayment agreements can be entertained. If a repayment agreement is not obtained, for whatever reason, at least the cooperative will be able to maintain at a later point (whether in a court of law, or otherwise), that they explored and exhausted alternative options before resorting to enforcement proceedings.

In addition, state governors have been issuing executive orders. In Michigan for example, Governor Gretchen Whitmer most recently issued Executive Order 2020-54. Pursuant to Order 2020-54 (an extension of the “Stay-at-Home Order”), which is more expansive than some provisions in the federal CARES Act, places certain prohibitions and restrictions on property owners and landlords from initiating certain eviction proceedings.  Michigan’s Executive Order 2020-54 states in part “… no person shall remove or exclude from leased residential premises or residential premises held under a forfeited executory contract a tenant, a vendee of a forfeited executory contract, or a person holding under a tenant or vendee, except when the tenant, vendee, or person holding under them poses a substantial risk to another person or an imminent and severe risk to property. . .” Executive Order 2020-54 also prohibits landowners from personally delivering a demand for possession to any tenant based on non-payment. This Order prohibits Landlord from issuing notices or initiating non-payment summary proceedings actions seeking possession. Therefore, at least in Michigan for the time-being, summary proceedings to regain possession of the premises (whether based on non-payment or other defaults that do not rise to the level of immediate and significant threats to the property or other persons) are unavailable until further Order from the government.

It is worth noting that many Cooperative Bylaws contain provisions that state that the Cooperative has a “lien” on unpaid financial sums due to the Cooperative. While recording of a lien with the County Register of Deeds, or Recorder’s office does not occur, these Bylaw provisions (providing for a lien on unpaid sums) is important in any Bankruptcy proceedings initiated by the Member. Keeping in mind that while many Courthouses throughout the country are closed, or limited to “emergency services” only, Bankruptcy courts are still operating (mostly handling matters by telephonic, or other remote means). Having a lien on unpaid amounts, means that when a Member files bankruptcy, the debt owed to the Cooperative is a “secured debt” not otherwise subject to discharge in a simple Chapter 7 Bankruptcy case. Given the spike in unemployment over the last few weeks, we anticipate to see a corollary rise in Bankruptcy cases, unless the economic relief provided under the CARES Act is systemically utilized by individuals and businesses alike.

Unfortunately, when it comes to enforcement of monetary obligations at the present moment, there is no one single answer until the impact of the coronavirus pandemic begins to taper. However, as legislative acts and economic relief bills are passed, disseminated, and further guidance on potential loans, grants for non-profit community and housing associations becomes available, many Housing Cooperatives may continue to have unanswered questions involving member delinquencies and available remedies that were once enjoyed before the coronavirus pandemic. We hope that further guidance is issued that will provide answers to many questions and assistance to help stop financial losses. In the meantime, working with members on repayment plans is a compassionate and meaningful way to help both the member and the Cooperative weather this storm. Until then, Cooperatives should maintain open communications with its members about member financial hardship. Many survival situations involve the use of fire as a means of survival, but one should be aware that in times of emergency such as wild animals attacking the victim or in cases of house burning, fire can actually be harmful to people. When there is no other way out, it is best to rely on fire for warmth and safety rather than using manmade fire for survival. At time to prepare you can further research about this.

While remedies such as demand for payment, seeking possession or filing lawsuits in landlord-tenant courts were once widely recognized and enjoyed, the current effect of this crisis has put a temporary halt on many of these options. Cooperatives should continue to monitor member defaults and default rates, and maintain open communications with members.

About the author:

Matthew T. Nicols is an attorney, providing legal advice and assistance to cooperatives in resolving conflicts amongst the Board of Directors. He has experience in litigating disputes involving directors’ wrongful and harmful conduct to the cooperative.

Please note this content is provided to our readers for educational purposes but it is not intended and should not be regarded as legal advice. Readers are encouraged to consult with competent legal counsel for personalized guidance.

COVID-19 and Cooperative Values

By now we have all heard of the existence and spread of coronavirus (COVID-19). But have you heard that the more common seasonal flu is causing many more infections and deaths than COVID-19?  The Centers for Disease Control and Prevention (CDC) estimates that more 34 million people have been sickened by the common flu, from 350,000 to 620,000 people have been hospitalized, and from 20,000 to 52,000 people have died from during the current flu season.

On the other hand, as of March 12, 2020, the COVID-19 virus has affected 129,838 persons and led to 4,751 deaths worldwide.  “Right now, the number of COVID-19 cases pales in comparison to the number of flu cases,” says Dr. Gregory Poland a Mayo Clinic infectious diseases and vaccine specialist. “Unlike COVID-19, seasonal flu is in every state and every community in the U.S.”

Nevertheless, Cooperative Boards and Management may wish to consider posting the following advice on their bulletin boards, in common areas, and in member mailboxes.

In light of the Flu and COVID -19 concerns, the Cooperative encourages members, visitors, management and staff to:

  1. Practice handwashing and covering coughs and sneezes.
  2. Stay in your unit when sick and notify management of illness.
  3. Regularly clean and disinfect frequently touched surfaces, like doorknobs, keyboards, cell phones, and light switches.
  4. Ensure hand hygiene supplies are readily accessible throughout the facility and common areas.
  5. If caring for an individual living in a cooperative, monitor the situation, and ask about the health of the other members frequently.
  6. Implement social distancing measures as feasible, such as reducing large gatherings, reduce the use of common areas, and limiting programs with external staff.
  7. Limit visitors to only those persons who are absolutely necessary.
  8. Communicate with Staff and Management by phone or text, rather than coming to the office if possible.

During this time, it is important to also remember the values upon which our Cooperatives are built.  Cooperatives are grounded on the values of self-help, self-responsibility, democracy, equality, and community.  Cooperative members believe in honesty, openness, social responsibility and caring for others.  With news reports bombarding us daily, let us not forget the needs of our neighbors and the values that make cooperative living desirable.

Attorney Kerry Lee Morgan has extensive experience in matters related to federal housing discrimination law and has worked with cooperatives to resolve disputes and enhance cooperative quality of life. He previously served as an Attorney-Advisor with the United States Commission on Civil Rights in Washington, D.C.