The coronavirus quarantine has led many states to issue stay-at-home orders on the plausible theory that doing so will cause individuals to be isolated from others and less likely to catch or spread the virus. Yet for many people, “home” is not a place of complete isolation, but involves shared space where residents come into repeated contact with each other in order to wash clothes, step outside, or pick up an Instacart order. Condominium complexes, for example, entail sole ownership of individual units but shared ownership of entryways, hallways, laundry facilities, and other common areas.
These common areas not only create distinctive challenges for residents who must navigate their use while social distancing, but also to the homeowners associations (HOAs) that govern these shared spaces. The pandemic has presented HOAs with a raft of difficult management issues and heightened liability risks. This post considers two in particular: the ability of an HOA to seek information from residents about their COVID-19 status and, the obligation, if any, of an HOA to disclose such information to its other residents.
These issues are not merely hypothetical. Some HOAs have already asked residents to voluntarily disclose to the HOA if they test positive for COVID-19. The response to these requests from residents has been uniformly, and powerfully, negative. The HOAs at issue have since backed off their initial request, stressing its voluntariness.
Yet HOAs may have valid reasons for wanting to know if residents have COVID-19. HOAs owe at least a basic negligence duty of care to their residents, and in many states a higher fiduciary duty. The private rules that HOAs administer (commonly called “covenants, conditions, and restrictions” or “CC&Rs”) may also charge HOAs with the obligation to keep residents reasonably safe. Even a single case of COVID-19 in a residential community—particularly a highly dense one populated largely by older residents—could pose a real safety threat that residents could reasonably expect management to address. In light of this, understanding the incidence of coronavirus infection within a given common-interest community could help the HOA understand the scope of health threat the community faces and act accordingly.
Even so, HOAs’ responsibilities likely do not extend to actively seeking out information about possible threats to residents. HOAs are responsible for keeping their land free of dangerous physical conditions. And property owners generally may be held liable for exposing invitees to risks of which the owner is or should have been aware. Yet Courts have not imposed a freestanding duty to seek out risk emanating from resident conduct on HOAs, whether from disease or any other source. Indeed, engaging in such inquiries may make matters worse for HOAs because it may render management subject to some obligation to disclose the information they uncover.
HOAs, unlike state actors, are likely under no obligation to investigate the coronavirus status of their residents. The harder question then becomes what responsibility an HOA has if they learn that a resident has tested positive for the virus. There are two valences to this inquiry: On the one hand, there are concerns related to resident privacy. Would disclosing this information violate the resident’s interest in keeping their health information private? On the other hand, there are concerns related to the safety of other residents. Would failing to disclose this information place residents at risk, and subject management to liability?
In terms of the first question, federal medical privacy and antidiscrimination laws probably do not bar disclosing information about residents’ COVID status. While some have suggested that the Health Insurance Portability and Accountability Act (HIPAA) would prohibit such disclosure, HIPAA in fact regulates only health care providers, health plans, and health care clearinghouses, not HOAs. Nor are the Fair Housing Act’s (FHA) disability discrimination provisions of relevance here. Even if a COVID-positive resident were regarded as disabled by the HOA, merely disclosing their status is not the kind of adverse housing-related act (such as eviction or rent increase) barred by the FHA. Finally, the Americans with Disabilities Act has confidentiality provisions relating to health information of disabled persons, but these apply only in the employment, not the housing, setting.
State law, by contrast, might prevent disclosure of a resident’s coronavirus-positive status. Nevada, for example, broadly prohibits HOAs from revealing residents’ personal information. And while most states have laws permitting residents to review all HOA records, most of those states limit this inspection right to preclude disclosure of private information about residents, Texas being one example.
Also, the community’s CC&Rs themselves may preclude the HOA from disclosing a resident’s coronavirus status, if they oblige management to keep personal information private or generally to protect residents’ privacy.
Of course, other residents may have an interest in knowing about the incidence of coronavirus within their community given the grave risks posed by the disease and its ease of transmissibility. Turning to the second question, assuming that none of the above sources of law barred disclosure, could an HOA’s failure to share such information expose them to liability for failing to warn residents?
Here, total HOA inaction could indeed subject management to liability. The novel coronavirus is both highly contagious and carries risks of morbidity and even mortality. Apprising residents of a community member’s coronavirus-positive status could allow residents to take needed precautions such as testing and self-quarantine if they had contacted the infected individual, and enhanced distancing if they had not. Given that HOAs have duties of reasonable care, often as a fiduciary, failing to warn residents of foreseeable health risks from known conditions could be regarded as a failure to meet those duties.
These two points place HOAs in a difficult bind. On the one hand, both law and respect for residents’ privacy may preclude disclosure of a community member’s coronavirus-positive status. On the other hand, failing to disclose this information may place residents at serious risks to their own health, raising the specter of harm to residents and liability for management.
The best strategy for HOAs, as some practitioners have suggested, may be to disclose to residents and employees only that a resident has tested positive without specifying their identity. This strategy would likely avoid both running afoul of state privacy laws and the practical downsides that would accrue to a resident if their coronavirus status were known while at the same time providing residents with general notice of the situation, thereby enabling them take additional precautions if they so choose.
Dave Fagundes is the Baker Botts LLP Professor of Law and Research Dean at the University of Houston Law Center.