COVID-19 and the resulting “stay home” orders has had an enormous impact on the day-to-day operations of condominium associations. While most residents seem to understand why the gym and pool are closed and why management is working remotely, many may question why they are not being allowed to complete in-unit renovations and construction. After all, the contractors are only going into one unit, so what’s the harm? Unfortunately, any introduction of a new person into a multifamily residence increases the risk of exposure to COVID-19. Additionally, the presence of these workers would likely constitute a violation of the various Stay Home, Work Safe orders issued across the state of Texas.
When determining whether a specific activity is permitted or advisable right now, we look at a number of sources, including emergency orders from state and local officials and guidance from the CDC. While the terminology may vary, every “stay home” order we have reviewed so far provides a list of “essential businesses” that may continue operating, and “essential activities” that individuals are permitted to perform outside of their residences. Understanding that these orders were written in haste and are not always as clearly worded as we would like, we have reached out to county officials when we are uncertain of the effect of a certain provision.
One important thing to keep in mind is that, according to the CDC, many carriers of COVID-19 are asymptomatic. Therefore, normal screening processes will often fail to identify carriers. The best option is for everyone to reduce their interactions with people outside of their household to the greatest extent possible.
Most local orders include “essential, critical infrastructure” in their list of essential businesses that may continue operating at this time and make general references to construction or maintenance of residences. This is being interpreted by county judges to include construction of new residences (where exposure to others is limited since there are no residents nearby) and construction essential to ensure an existing residence is safe for occupancy by a current occupant. The latter might include replacing broken windows or locks, repairing busted pipes, or fixing non-functioning toilets.
The statewide order issued by Governor Abbott is consistent with many of the local orders in that it also references “critical, essential infrastructure.” Further, the CISA memorandum forming the basis for the statewide order limits its discussion to “maintaining and repairing” critical infrastructure. We do not believe voluntary aesthetic remodeling qualifies as maintenance or repair. CISA also advises that “in-person, non-mandatory activities should be delayed until the resumption of normal operations.”
Simply stated, aesthetic remodeling simply does not qualify as essential or critical, nor does construction of any type on an unoccupied unit. The risk of exposure to COVID-19 is too high to be outweigh any possible benefit. We have already heard stories of contractors appearing perfectly healthy on the jobsite only to be diagnosed with COVID-19 a few days later. Most likely, these contractors were already carriers while they were still performing services.
Owners who believe their unit requires essential construction can seek a waiver from the Texas Department of Emergency Management. If a waiver is granted, any contractors entering the building should be required to wear gloves and N95 masks and use HEPA filters on the job site. Without a waiver, the construction will need to wait until such time as there are no longer any “stay home” orders in place.
We understand not wanting to cause unnecessary delays for owners. There is normally nothing to be gained from delaying in-unit construction. However, these are unusual times, and it is best to rely on health care experts and local officials when making these difficult decisions. Owners who believe they are allowed to continue with construction should note that, if they’re wrong and local law enforcement determines a violation has occurred, they could face criminal charges, which may result in monetary fines or confinement in jail.
The reality is that almost everyone will be inconvenienced in some way by the current situation. However, it appears that these small personal sacrifices are going to be essential for protecting the most vulnerable members of our communities.