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Meanwhile, back at the strata

Legal Notes

with RACHEL MCLARTY

Wednesday, March 25, 2020

Jamaica has been declared a disaster area by the prime minister in response to the spread of coronavirus disease (COVID-19), in accordance with provisions of the Disaster Risk Management Act 2015 (The Act). Our Government has reported that there are multiple confirmed cases of COVID-19 here and it appears the number of confirmations is likely to grow.

It has been widely publicised both locally and internationally that there is an increased risk for health care workers, individuals with respiratory and other underlying health issues, and also the elderly.

The Act allows for certain orders to be made to manage a disaster such as the spread of this virus. Accordingly, under the Act, authorised personnel may require compliance with any order made and may, at all times, enter any premise to ensure compliance. The Act also provides for an authorised person to produce his authority to enter a premises if asked to do so by a person in charge of the premises.

More importantly, in certain circumstances an authorised person may, upon the presentation of identification, enter a premises with or without the consent of an occupant, to take action in the public interest. This Act is without doubt one which contemplates extraordinary circumstances and, therefore, allows authorised personnel to have extraordinary powers to take action. It follows that everyone should heed the warnings and follow the safeguards regarding conduct in public spaces.

What measures can people in a residential community put in place?

It is safe to say that for residential communities – where people interact with each other frequently via common and shared areas such as elevators, amenity rooms including gyms, and even corridors – the need to manage and monitor preventative measures at this time is crucial.

The case in relation to stratas is arguably more critical than that of single-family homes which do not share common areas with as many people. Proactive strata management committees should therefore be thinking about how COVID-19 is likely to impact their residential communities, and what measures may be put in place to not only prepare for, but possibly contain and lessen its impact. They should aim to strike a well-needed balance to avoid panic and hysteria. This article focuses on some practical concerns and tips for strata management committees and occupants.

 

The initial concerns of occupants may include some of the following:

May we prohibit most or all guests from entering the strata complex? May we also prohibit short-term rentals?

May we prohibit proprietors from undertaking renovation projects in order to prevent workmen/contractors from entering the property?

May anyone known to have travelled to countries considered “high-risk” areas be prevented from returning to the complex and ultimately to their units?

May we ask prospective purchasers and even potential tenants if they have travelled to any of the publicised “high-risk” countries, cities or towns?

Does the Disaster Area declaration under the Act mean that strata management committees now have statutory powers?

Should management committees cease convening their meetings?

 

It is likely that restrictive rules and protocols that could address the above concerns, particularly if not made by the consent of all (or already agreed), may unnecessarily, and in some cases unconstitutionally, impact the lives of property owners and occupants. A lot will depend on the wording of the particular by-laws that govern the strata and whether the strata management committee is empowered to make emergency rules.

A well-informed approach to these issues is therefore needed in order to navigate the protocols and measures that may affect freedoms and quality of life. Indeed, the last thing a management committee wants after passing through a crisis of this magnitude is to have its recommendations put to a legal challenge by the residential community to which it is answerable. Naturally, not all stratas are likely to be impacted in the same way.

Importantly, the Act's extraordinary powers do not empower strata management committees or proprietors to take actions in the public interest such as those set out above under the Act. The strata management committee may report to the relevant authorities suspected breaches of the recently promulgated orders, but it cannot be assumed that a management committee may utilise the same powers given to authorised personnel under the Act to enter a premises and take action.

When in doubt, seek the advice of an attorney-at-law as it may also depend on the specific language of the by-laws. Strata management committees should also keep in mind that while the management committee may not be empowered to do some things, like prohibit high-risk travellers from entering their units, moral suasion may achieve the same goal.

In addition to widely publicised protocols such as social distancing and hand sanitising regimens, some measures which management committees, along with proprietors, may consider include the following:

Monitor short-term rental activity which may be prohibited by strata by-laws, but do not take matters into one's own hands. Instead, if necessary, seek legal advice on enforcement of by-laws that already prohibit short-term rentals or on making amendments to by-laws in order to stem that activity.

If in doubt, consider speaking with your management committee or counsel about initiating conversations with prospective purchasers or tenants regarding their travel history and possible exposure to COVID-19.

Install hand sanitiser stations in high-traffic areas throughout the complex.

Urge residents who tend to have frequent guests to limit or reduce guest visits for the foreseeable future.

Do ensure that emergency contact information is shared with all proprietors/occupants and pay attention to anyone who may be particularly vulnerable.

Management committees may also consider revising any existing rules and guidelines which govern the use of amenity rooms and common areas, such as pools or clubhouses, for private social events.

Consideration may be given to limiting not only the number of events but also the number of people attending. Keep in mind that one of the Government's containment measures (beginning from the 18th day of March 2020 for an initial period of seven days) is that gatherings in any public place shall not exceed 10 persons at a time.

 

In terms of suspending meetings, management committees may be expected to continue operating and meetings are likely to be a large part of that. Utilising a video conferencing/meeting option, easily available via the Internet, is a good alternative to consider.

In closing, while there may not be a finite response to each of the questions suggested above, collective self-preservation depends on cooperation between management committees in their leadership roles and proprietors/occupants as responsible stakeholders.

All parties are expected to embrace and enforce decisions and protocols put in place as safeguards during this increasingly challenging time. Now more than ever before, a timely reminder of the old saying “we are only as strong as our weakest link” may be useful.

 

Rachel McLarty is an associate at Myers, Fletcher & Gordon and is a member of the firm's Property Department. She may be contacted via rachel.mclarty@mfg.com.jm or you can visit the firm's website at www.myersfletcher.com. This article is for general information purposes only and does not constitute legal advice.