Adam Leitman Bailey and John Desiderio look at the short and long-term legal implications and issues affecting residential living during COVID-19 pandemic.
By Adam Leitman Bailey and John M. Desiderio | June 09, 2020
The COVID-19 pandemic has confronted building owners, managers and boards of New York City rental, condominium, and cooperative-owned buildings with operational challenges that few, if any, buildings have ever experienced since the so-called Spanish Flu pandemic—a hundred years ago. The “social distancing” rules and restrictions imposed by governments at all levels has spawned questions that buildings ask and are asked by their residents regarding the responsibilities and duties of both managers and occupants of the buildings.
New York residential multiple dwellings generally fall into the three categories of rental, condominium, or cooperative apartment buildings. To write this article looking at the short and long-term legal implications and issues affecting residential living during COVID-19 pandemic, we researched and analyzed decisions of courts that have handled similar issues, during epidemics of scarlet Fever, Spanish flu, and small pox, in relation to the application of federal and state case law and legislation, during the last century, and to the requirements mandated by today’s executive orders.
PROTECTING THE HEALTH OF BUILDING OCCUPANTS
The primary responsibility of building managers, whether they be owners of rental buildings, or members of cooperative boards or members of the boards of managers of condominiums, and/or their respective property managers or managing agents, is to maintain the health and safety of their buildings and their occupants. See Multiple Dwelling Law, §2 (Legislative Finding). “The statutory and regulatory scheme which governs and controls the supervision of residential buildings in the City of New York is based upon the social and economic premise that it is the responsibility of the owner of residential buildings to maintain the building, remove violations and insure that the tenants have habitable premises in which to live.” Torres v. Ragonesi, 83 Misc.2d 84, 370 NYS2d 779 (NYC Civil Court, New York County 1975).
Ownership or management is therefore required to maintain the building common areas in compliance with the public health code. See NYC Administrative Code, §17-133 (Penalties)(“Every person, corporation, or body that shall violate or not conform to any provisions of the health code of the City of New York, or any rule or sanitary regulation made, shall be liable to pay a penalty not exceeding the maximum amount allowed by the health code of the City of New York.”).
In the context of the COVID-19 pandemic, ownership’s duty is to maintain the building in a manner that protects its occupants against the spread of the disease. Management’s obligation, in epidemic conditions, is to implement all necessary and appropriate precautions to prevent the spread of disease. This duty was recognized long ago in Majestic Hotel v. Eyre, 53 AD 273, 65 NYS 745 (1st Dept. 1900)(a case involving an epidemic of scarlet fever), where the court declared:
We doubt not, if the landlord was guilty of affirmative negligence, or negligently suffered acts to be done by which a contagious disease was introduced into a thickly-populated hotel or tenement house, or, upon the breaking out of a contagious disease upon the premises, if he, retaining and exercising a general control over the public parts of the house, should negligently omit to take precautions to prevent the spread of the epidemic, or otherwise to protect the tenants from contagion, when the means lay within his power so to do, a case might be made which would avail as a justification for the surrender of the premises. (Emphasis added).
Compare with Sully v. Schmitt, 147 NY 248 (1895) (held: tenant was justified in abandoning rental premises because landlord’s affirmative acts, during the tenant’s occupancy, caused a nuisance dangerous to life or health and against which the tenant was remediless by the performance of any acts called for by the lease.)
RIGHTS AND OBLIGATIONS OF THE OCCUPANTS
Tenants, shareholders, unit owners, and other occupants residing or otherwise present in buildings within the zone of the pandemic are necessarily subject to all of the federal, State, and local New York City social distancing guidelines, rules, and mandatory directives that restrict their activities.
In New York State, the primary restrictions on personal freedom of movement and social interaction emanate from the executive orders of the governor, under the authority given to him to declare a disaster emergency and to “issue any directive during…[an] epidemic, disease outbreak” that “must be necessary to cope with the disaster and may provide for procedures reasonably necessary to enforce such directive.”(Emphasis added). See Executive Law §§28 and 29-a.
Accordingly, starting on March 7, 2020, the governor has issued (as of the date on which this is written) thirty-five executive orders affecting the business and personal activities of millions of people within New York State, including all of the operations of the hundreds of thousands of buildings within New York City. All leases for tenants in rental buildings and proprietary leases for shareholders in cooperative buildings generally provide that “the lessee will comply with all laws, ordinances, orders, rules and regulations of the Federal, State and City governments and of any of their departments and bureaus.”
Likewise § 339-d of the Condominium Act, Article 9-B of the Real Property Law, provides:
Unless specifically exempted by a provision of this article, all property subject to the provisions of this article shall continue to be subject to all laws, rules, and resolutions adopted by any county, city, town or village for the health, safety, and welfare of its inhabitants or for the regulation of the use of real property. Every county, city, town and village shall continue to have all enforcement powers created by such laws, rules or resolutions of the enabling acts of such laws, rules and resolutions and may exercise those enforcement powers against any violation involving property subject to the provisions of this article. (Emphasis added).
Therefore, building managements must exercise all reasonable effort to comply with the orders of the governor directed to preventing the spread of the COVID-19 virus and protecting the health and safety of all building occupants. Moreover, both management and building residents alike are subject to enforcement of those orders by all local law enforcement authorities. See Crayton v. Larabee, 220 NY 493 (1917)(held: powers conferred by the Legislature upon local health officials to enforce a quarantine are liberally construed).
POTENTIAL LAWSUITS AGAINST OWNERSHIP
As a result of the governor’s executive orders, prevailing lease terms, and the Condominium Act, claims, for breaches of the warranty of habitability by residential and cooperative shareholder-tenants and breach of contract claims by condominium owners, shall fail when it comes to the use of gyms, playrooms or any public spaces. However, for those buildings that have banned all persons except residents and medical help from entering, a cause of action may lie, as such rules banning persons who otherwise comply with required safety measures, are arguably beyond the breadth of Executive Order 202.34 which authorizes building owners to deny admittance only to individuals who fail to cover their nose and mouth with a mask or cloth face-covering.
Nevertheless, for plaintiffs to prevail in such cases, proof of damages or harm will be required to obtain any significant monetary recovery. Restriction of any other rights or amenities will face the same test of first, proving that ownership or management went beyond the powers granted by the Executive Law, and second, that damages occurred as a result of any proven breach of plaintiff’s contractual rights or of the warranty of habitability. But, unless otherwise held subject to constitutional challenge, Executive Order 202.34 expressly directs that any owner who denies admittance to persons, who fail to cover their nose and mouth with a mask or cloth face covering, “shall not be subject to a claim of violation of the covenant of quiet enjoyment.”
However, these questions are not unprecedented, and there are court rulings that do provide some insight into how cases arising out of the COVID-19 experience may be dealt with at the end of the social distancing period when all of the courts fully “re-open for business.”
Moreover, those tenants, shareholders, and unit owners who left their “uninhabitable” New York City apartments to “ride out” the pandemic in either their country home upstate or in their summer home in the Hamptons, are likely to find that any hopes they have been harboring, for an abatement or forbearance on their lease, maintenance, or common charges obligations, are going to end in disappointment. Among the lessons taught so long ago by the court in Majestic Hotel v. Eyre, supra, include the following comments addressed to a tenant who abandoned his New York City apartment to “ride out” a scarlet fever epidemic:
So far as physical surroundings were concerned, the apartments were as habitable when the defendant voluntarily vacated them as when they were leased. It is also clear that after the fever was discovered the usual precautions known to science were taken to isolate the cases and prevent the spread of the disease. There were about 400 persons occupying apartments under lease in the hotel at the time of the breaking out of the fever; and for the most part, if not all of these tenants, they continued to remain and occupy their apartments, without detriment to either health or comfort. The defendant abandoned his apartments on account of the fear of contagion to himself and family. We are, therefore, to see if this is sufficient to excuse the payment of rent. We know of no ground upon which the payment of rent can be successfully resisted. * * * ”
The court continued:
To constitute eviction, there must be possession by paramount title, or acts upon the part of the landlord, or of those persons subject to his control, which make the occupancy so uncomfortable that the tenant is justified in removing therefrom. There was in this case no claim of paramount title in any other person, nor was there actual expulsion of the tenant from the premises; neither was there any affirmative act upon the part of the landlord which required the tenant to remove.
Similarly, in the case of Beakes v. Haas, 36 Misc. 796, 74 NYS 843 (Supreme Court, New York County, Appellate Term 1901), the plaintiff landlord sued to dispossess the defendant tenant who had failed to pay the rent due for August and September. On the second of July, the tenant “who had become afflicted with small pox, was removed by the health authorities to North Brothers Island, where he remained for seven or eight days.” Upon tenant’s removal from the premises, the Health Department required that the tenant’s rooms be fumigated, repapered, and repainted. The work was commenced in July but not completed until some time in August. The tenant never abandoned the premises, paid into court the September rent for which he was found liable, claimed the lease was still in force, and that he was entitled to remain in his tenancy.
The Municipal Court had found in favor of the landlord for the September rent, but held in favor of the tenant for the August rent, “on the apparent theory of eviction during that month.” The Appellate Term stated “We are at a loss to discover how these facts establish an eviction of the tenant or any defense whatever to the proceedings.”
The court continued:
The tenant was not prevented from occupying the demised premises by any act of the landlord; on the contrary, any deprivation of use was the result of the tenant’s misfortune in contracting a malignant disease which required the health authorities, for the public good, to quarantine the tenant for a reasonable time to prevent spread of the evil.
No attempt was made to prove the prevalence of a contagious disease in the house, nor does it appear that the tenant contracted the disease in the house, or that anything growing out of the relation between the parties had anything whatever to do with it.
* * * *
Even if the acts arose to the dignity of a constructive eviction, they would constitute no defense, not having been followed by an abandonment of the premises, and a surrender to landlord. (emphasis added).
As the executives orders expire or the safety needs appear to dwindle, buildings must adopt quickly to not only protecting residents with new rules, safety protocols and available tools such as disposable, wipes, sprays, screens in communal rooms such as gyms. The friction already being played out is between the building keeping the gym/communal room closed for safety reason in the name of the business judgment rule or ownership policy despite the new rule allowing 10 or more people in a room together versus the tenant/shareholder/owner wanting to use the facilities and threatening a lawsuit and an a desired abatement.
CONSTITUTIONALITY OF THE EXECUTIVE ORDERS
Some of the questions starting to invade the courts are whether the governor’s actions will withstand constitutional legal attacks. Although the governor’s “power to enforce legislation…is accorded great flexibility…, he may not…go beyond stated legislative policy and prescribe a remedial device not embraced by the policy.” Rapp v. Carey, 44 NY2d 157, 163 (1978)(internal quotations omitted).
At the top of the list includes the U.S. Constitution’s Contract Clause (Article 1, Section 10) which bans government interfering or “impairing the Obligation of Contracts.” These executive orders interfered with private contracts between landlords and tenants and mortgage payments between borrowers and lenders.
Here are some of the most prominent executive orders that appear to violate the Contract Clause:
- Executive Order 202.28 modifies Real Property Law §238-a(2) by directing that “no landlord, lessor, sub-lessor or grantor shall demand or be entitled to any payments, fee or charge for late payment of rent occurring during the time period from March 20, 2020, through August 20, 2020.”
- Executive Order 202.28 prohibits “the initiation of a proceeding or enforcement of either an eviction of any residential or commercial tenant, for nonpayment of rent or a foreclosure of any residential or commercial mortgage, owned or rented by someone that is eligible for unemployment insurance or benefits under state of federal law or otherwise facing financial hardship due to the COVID-19 pandemic for a period of sixty days beginning on June 20, 2020.” Besides violating the Contract Clause Executive Order 202.28 denies equal protection of the law to persons not eligible for unemployment benefits or not otherwise facing financial hardship. See generally Pyke v. Cuomo, 258 F3d 107 (2d Cir. 2001).
- Executive Order 202.28 modifies Sections 7-107 and 7-108 of the General Obligations Law to allow landlords and tenants or licensees of residential properties, “upon the consent of the tenant or licensee,” to enter into a written agreement by which “the security deposit and any interest due thereof, shall be used to pay rent that is in arrears or will become due.” Landlords “shall provide such relief to tenants or licensees who so request it that are eligible for unemployment insurance or benefits under state or federal law or are otherwise facing financial hardship due to the COVID-19 pandemic.”
- The order also provides (a) that it “shall be the tenant’s or licensee’s option to enter into such an agreement and landlords shall not harass, threaten or engage in any harmful act to compel such agreement,” and (b) that “any security deposit used as a payment of rent shall be replenished by the tenant or licensee, to be paid at the rate of 1/12 the amount used as rent per month.”
- As regards both the provision concerning security deposits and the provision prohibiting commencement of summary proceedings against COVID/economically afflicted persons for sixty days commencing June 20, 2020, Executive Order 202.28 is problematic for landlords.
- A Directive issued by the New York City Civil Court, on May 22, 2020, provides that:
Any petitioner seeking to commence a summary proceeding for nonpayment of rent shall file, along with the petition, an affidavit by a person with knowledge of the facts stating that the proposed respondent(s) is not a person eligible for unemployment insurance or benefits under state or federal law or otherwise facing financial hardship due to the COVID-19 pandemic.
Accordingly, to comply with the security deposit provision of Executive Order 202.28 and/or the Civil Court directive regarding commencement of summary proceedings, a landlord, despite the risk of a false harassment claim being made against it, must make personal inquiry, through their managing agents, superintendents, or other persons employed for this purpose, to determine whether the tenant is COVID/economically afflicted in connection with any security deposit discussion (even when the tenant has not requested the discussion) and prior to filing a summary proceeding for rent default.
RIGHTS OF INDIVIDUAL OCCUPANTS
Individual occupants residing in New York City buildings, who are infected with the COVID-19 virus, and who do not “self-quarantine” under the existing social distancing rules and guidelines, may be subject to mandatory quarantine under NYC Administrative Code, §17-104 (Measures to prevent the spread of disease).
Upon report to the New York City Department of Health of a person who is not self-quarantining, but who is “apparently or presumably sick of any communicable disease,” that person who is not self-quarantining is subject to inspection by “any officer or employee of the department.” See NYC Administrative Code, §17-106 (Inspection of sick; reports). Such a person could then potentially be subject to detention in a public hospital. See, e.g., City of New York v. Mary Doe, 205 AD2d 469, 614 NYS2d 8 (1st Dept. 1994)(held: patient’s multidrug resistant tuberculosis could not be treated and public health protected by less restrictive means); see also Bradley v. Crowell, 181 Misc.2d 529, 694 NYS2d 617 (Sup. Ct., Suffolk County 1999)(held: petition for involuntary detention must be proved by “clear and convincing evidence.”)
Buildings should report, either to the Department of Health, by calling “311,” or report to their local police precinct, all known residents, who are “apparently or presumably” infected with the COVID-19 virus, but who fail to self-quarantine. In such cases, landlords and the boards of condominiums and cooperative buildings, who either negligently or intentionally fail to make the required report, could be subject to penalties for violating the New York City health code (see text reference above to §133 of the Code) and could also be subject to possible damage claims by other persons within the building who became infected as a result. See Majestic Hotel v. Eyre, supra.
There is no law requiring COVID-19-infected residents to advise management of their condition, so long as the infected residents self-quarantine in accordance with the mandated social distancing rules and guidelines. Nevertheless, building owners and managers, as a matter of prudence, should protect the confidential health status of those of their residents who are known to be infected, but who are also known to be complying with the requirement to self-quarantine. “Information about one’s body and state of health is matter which the individual is ordinarily entitled to retain within the ‘private enclave where he may lead a private life’” and which is recognized as matter “the dissemination of which one would prefer to maintain greater control over.” Doe v. City of New York, 15 F3d 264, 267 (2d Cir. 1994).
Aside from the non-disclosure protections given to certain medical records, as provided for under Public Health Law §§2782(k) and 2785, and under the Mental Hygiene Law §33.13, see In re Garinger, 305 AD2d 677, 759 NYS2d 550 (2d Dept. 2003), there is no New York State constitutionally or statutorily protected “right of privacy” regarding a person’s interest in maintaining the confidentiality of his or her health status.
New York’s “Right of Privacy” statute (Civil Rights Law, §§50, 50-c) protects a person from disclosure, “for advertising purposes, or for purposes of trade” only, of “the name, portrait or picture of any living person without having first obtained the written consent of such person.”
However, there is a federal constitutionally protected “zone of privacy,” more accurately described as “a right to ‘confidentiality,’” protecting a person’s “interest in avoiding public disclosure of personal matters,” which may be required to be reported to governmental authorities, see, e.g., Whalen v. Roe, 429 US 589, 599 (1977), but where the governmental authority publicly discloses the sensitive personal health information, even where that health information is otherwise required to be disclosed by law. See Doe v. City of New York, supra. This federally protected “right to confidentiality” is separate and apart from the protections provided under the Health Insurance Portability and Accountability Act of 1996 (HIPAA), which mandate health care providers and health insurance companies to not disclose and to maintain the confidentiality of a person’s health information.
Whether or not this federal constitutionally protected “right to confidentiality,” which protects against governmental “public disclosure of personal matters,” could be extended to protect self-quarantined-infected COVID-19 persons, from having their health condition disclosed to other residents, by the managers of the buildings in which they reside, is an open question.
Accordingly, whether a landlord or a condominium board of managers or cooperative board of directors, or their respective property managers or managing agents, may lawfully disclose, to other residents of their buildings, the identity of an individual person infected with the COVID-19 virus, is presently undetermined.
However, there appears to be general consensus among real estate attorneys that management may disclose the fact that persons infected with COVID-19 are residing in the building, but that management should not identify the infected individuals. However, there is no general consensus on whether buildings should identify the floor on which such persons reside. We believe that those in proximity to a diagnosed person must know the unit number of the infected person, to ensure that appropriate precautions can be taken to avoid catching this plague. Otherwise, buildings may open themselves to negligence claims.
At the same time and as much as possible, all persons responsible for the management of rental, condominium, and cooperative-run buildings should prudently maintain and respect the confidential health information of all of their residents’ who are complying with the mandated governmental social distancing rules, including the requirement for self-quarantine where that applies. In the case of residents known to have tested positive for COVID-19 virus, but who refuse to self-quarantine, some managements have issued an advisory that there are residents in the building, without identifying any individual, who are violating the law by not complying with the orders to self-quarantine.
Nevertheless, as noted above, management itself may run the risk of violating the law by not reporting such individuals to the Health Department. Adam Leitman Bailey, P.C. recently started an emergency action in New York State Supreme Court against a resident refusing to follow the social distancing Executive order inside the building.
Finally, it should also be noted that, aside from the obligation of management to report those infected residents who either fail or refuse to self-quarantine, management would be wise to not implement or take any action that treats an infected resident different from the other residents of the building. Persons with communicable or contagious diseases are deemed handicapped or disabled persons under federal law. See School Board of Nassau County, Florida v. Arline, 480 US 273, 284- 286 (1987). Therefore, treating persons infected with a disabling communicable disease in a discriminatory fashion because of their disease would violate the federal Fair Housing Act (“FHA”), 42 USC §3604(f)(1)(B), see, e.g., Olsen v. Stark Homes, Inc., 759 F3d 140 (2d Cir. 2014), Elmowitz v. Executive Towers at Lido, LLC, 571 F.Supp.2d 370 (EDNY 2008) (held: plaintiff’s complaint alleging that landlord’s refusal to renew plaintiff’s lease because of plaintiff’s mental disability stated a cause of action under the FHA). New York State and New York City civil rights statutes also prohibit discrimination “against any person because of…disability…in the terms, conditions or privileges of the sale, rental or lease of any…housing accommodation or in the furnishing or facilities or services in connection therewith.” New York Executive Law §296(5)(a)(2); New York City Administrative Code, Title 8, Civil Rights, §8-107(5)(1)(a)(b). (Emphasis added).
In addition, any potential action that a landlord might take to evict a tenant, after the end of the social distancing period, for having been infected, in the absence of an order from a governmental agency permitting the tenant’s exclusion from his residence, would violate New York City Administrative Code §26-521 (Unlawful eviction) which makes it “unlawful for any person to evict or attempt to evict an occupant of a dwelling unit who has lawfully occupied the dwelling unit for thirty consecutive days…except to the extent permitted by law.” See Campbell v. Blum, 91 AD2d 937, 457 NYS2d 816 (1st Dept. 1983); see also Daniels v. Christofoletti, 143 Misc.2d 857, 542 NYS2d 482 (NYC Civil Court, Queens County 1989)(held: Adult home did not have basis for excluding blind resident diagnosed with AIDS absent showing that he posed an imminent risk of death or serious physical harm to other residents).
REPUBLICAN FORM OF GOVERNMENT
Article 4 of the U.S. Constitution “guarantees to every State in this Union a Republican Form of Government.” (U.S.C. Article IV Section 4.). Although rarely used in our history, the closing of our courts appears to violate the sanctity of this clause and the constitution. At the time of this writing, new housing court cases cannot be started unless they fit into a very select group of emergencies and as noted above Housing Court has made it almost impossible to prosecute a case by putting up so many obstacles.
It appears that the republican form of government guaranteed by the constitution had been violated by the closing of the courts and continues to be violated by the Civil Court of the City of New York as the courts cannot be closed except for a select list of emergency actions. A question for another time will be whether a governor can close down a City and require those of its citizens who are not infected with the disease be required to stay in their homes under this same clause.
It is clear that the onset of the COVIT-19 virus, the recent riots and looting are requiring building owners and managers to cope with situations they hardly could ever have been expected to confront, short of actual wartime conditions. The discussion above is intended to give some insight into the complexity of the various issues facing building owners and managers within the context of the overall societal emergency that all New York City residents and workers are experiencing.
Adam Leitman Bailey is the founding partner of Adam Leitman Bailey, P.C. and John M. Desiderio is a partner of the firm’s real estate litigation group.