While not the first time the United States has dealt with an outbreak of a highly infectious disease, the COVID-19 outbreak is the first time where the federal, state, and local governments have been so publically involved in directly regulating commerce. These actions range from publishing wide-ranging guidelines to even forcing some businesses to close. This response to COVID-19 is unprecedented and causing commercial landlords to be understandably concerned as to disclosure of COVID-19 contact with the premises.

The first question a commercial landlord would likely have is whether a landlord can send out notices to all tenants notifying them of a potential or confirmed contact with COVID-19. Unless it is expressly prohibited by some novel lease provision or law in the jurisdiction, the answer is yes, if the infected individual is not identified and their identity kept confidential. Then the second question a commercial landlord would likely have is whether there is a legal duty to disclose this contact to the tenants. This will be a more difficult and fact-based inquiry. The first step in answering this question would be to consult the leases at issue and specific laws of the jurisdiction where the premises are located. Due to the novelty of this situation, many leases do not specifically address this, and there is a lack of law. Surprisingly, the Zika, Ebola, H1N1, and other outbreaks did not generate much law on this or other pandemic legal issues. As a result, each instance of COVID-19 contact should be viewed in light of the facts of the contact, layout/engineering of the premises (for example open air shopping center or closed building), lease terms and duties of tenant and landlord, rules and regulations of the premises, insurance coverage issues, and any other laws of the jurisdiction that apply to the landlord-tenant relationship. In many jurisdictions, this will likely come down to the reasonableness or foreseeability of the duty to disclose. However, as per before, the law of the jurisdiction at issue should be consulted. With the high level of publicity surrounding COVID-19 and potential for exposure on a number of levels, we expect that disclosure will be made in a majority of situations. Because this is a novel and highly publicized situation, it is inevitable that there will be new legislation and case law on these issues in the coming months and years.

We recommend consulting an attorney before proceeding with action on this subject. If you would like additional information on this subject, please contact the author, Jeremy Overbey, at joverbey@settlepou.com .