Re-opening Amenity Spaces Still in Limbo

As the COVID-19 pandemic enters its sixth month, many cooperatives and condominiums are struggling with the decision whether to re-open the recreational amenity spaces in their buildings – such as gyms, rec rooms, pools, and similar spaces – that most buildings closed at the outset of the pandemic.

Discussions about residential amenity spaces are taking place at the same time that the plight of commercial gyms has garnered increasing attention and controversy. One of the first Executive Orders issued by Gov. Andrew Cuomo in the early stages of the pandemic directed the closure of those types of businesses, and those businesses have remained closed even after much of the rest of the economy in New York slowly re-opened. This has put enormous pressure on gym owners trying to stay in business, and it has led to frustration among patrons who rely on gyms for much-needed exercise and recreation time.

In the face of increasing pressure from commercial gym owners and patrons, including a class action lawsuit recently filed by more than 1,500 gym owners, Cuomo issued guidance on August 17, permitting commercial gyms to re-open so long as all patrons wear masks and capacity is capped at 33%, among other conditions. Almost immediately, Mayor Bill de Blasio issued a statement that gyms in New York City would remain closed for the time being. So those commercial gym owners and users remain in limbo.

For co-op and condo boards trying to decide what to do about their gyms and recreational spaces, the mixed messages from Cuomo and de Blasio were the latest in unclear public health directives. The Executives Orders themselves do not unambiguously apply to residential amenity spaces or, for that matter, only to businesses serving the general public. The Empire State Development Corporation, which provides advice on the interpretation of the Executive Orders, has opined that both types of facility must remain closed until further notice. The joint guidelines issued by the Real Estate Board of New York, the service employees’ union Local 32BJ SEIU, and the Realty Advisory Board have also called for gyms to remain closed for now.

Many co-op and condo residents are unhappy that their amenity spaces, which they pay for month by month, have not been available for use since March. Those residents reason that the rate of infection of the virus in New York City has held at comparatively low rates in recent weeks. Moreover, health authorities have a better understanding of how the virus transmits, particularly in poorly ventilated, crowded, and close contact settings. The steps needed to minimize those risks – mask wearing, social distancing, improved ventilation, and sanitizing of equipment before and after use – may arguably be more easily achieved in a residential space than in a large commercial space. For example, co-op and condo buildings can limit usage of gyms to one or two people at a time, which would probably not be economical for commercial gyms.

These precautions are an absolute minimum for any building considering reopening these spaces. Boards should also consider additional measures, such as pre-screening for symptoms of the virus to the extent that more than one resident is allowed in the space at a time, and requiring liability waivers for all users. Boards should also continue to closely monitor public health guidance and consult with management and counsel before taking any decisions about reopening these amenity spaces.

William D. McCracken is a partner at the law firm Ganfer Shore Leeds & Zauderer.