As counties in New York have completed Phase I and entered Phase II of reopening and as New York City prepares for Phase I (currently scheduled for June 8, 2020), clients have inquired about the protocol and procedures for resuming non-essential construction. Specifically, boards are curious about how to manage construction commencing in their buildings and within individual units while complying with New York State’s reopening guidelines and following their own rules and safety protocol. (Please note that all businesses, including condominiums, cooperatives, and homeowners association are required to have a safety plan in place, which your management company should provide guidance on.)
First, it is worth noting that condominium, cooperative, and HOA boards have the power and discretion to determine when construction can resume in their respective buildings in order to protect their residents. Even though the Governor’s orders allow non-essential construction work to begin, they do not require boards to permit construction or alterations. Each board can make its own determination of when construction can be resumed based on the perceived needs and concerns of their buildings’ residents and also keeping in mind the difference between common area construction and repairs (e.g. façade and roof work) and alterations within an individual unit. Whether construction is being performed in common areas or in an individual unit, there are different control, proximity, and legal contractual considerations for boards to consider.
Boards will have more direct control over common area repairs as they will have hired the contractor performing the work; however, construction in common areas could still create safety concerns for all residents if construction workers will be coming into contact with residents and staff members. On the other hand, alterations within an individual unit will be performed by a contractor hired by a resident so the board will have less control over the work performed, but the work will be performed within that resident’s unit, so there should be less contact between such contractors and building residents and staff members. In addition to these control and proximity issues, these different construction scenarios will be governed by different types of contractual relationships.
If a board is concerned about the presence of contractors in their building, they should promptly review any construction contracts they have entered into and any active alteration agreements with residents to assess their authority to postpone construction under these documents even if it is permitted to resume by the Governor’s executive orders. Additionally, boards have the power to impose new house rules or rules and regulations, so, subject to seeking appropriate legal advice, boards could consider amending their rules to put limitations on unit alterations even if there already are existing active alteration agreements. This could potentially allow a board to postpone non-essential construction within a unit until they deem it is safe.
Once a board deems it safe to allow construction or alterations to resume, they should make sure that construction companies follow the rules imposed by New York State. The New York State guidelines for construction companies resuming work can be found here. Part of these guidelines require construction companies to have a written safety plan. While this plan does not need to be filed with the State, it must be retained on the premises of the construction company and must be made available to the New York State Department of Health (DOH) or local health or safety authorities in the event of an inspection. A template for a safety plan, which is applicable to all companies resuming work, can be found here.
Fundamentally, it is a board’s responsibility to safeguard the welfare of its building’s residents. In order to do this, boards should take stock of suspended and pending construction projects as construction is permitted to resume and put a plan in place to monitor compliance with State protocols which prevent the spread of COVID-19. Boards should also consider implementing their own procedures for allowing construction to resume safely such as staggering the start times for different construction projects or limiting elevator usage to prevent large numbers of workers from entering the building at the same time. Boards should proactively consult with their property managers, attorneys, and design professionals and implement rules to facilitate safe and orderly construction as government limitations are lifted and work resumes.
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