The Interplay between Private Social Distancing Measures by Residential Subdivisions and Condominium Corporations and the Possible Government Overreach Response

by Juan Paolo Miguel B. Leido and Joseph Anthony P. Lopez
Since the outbreak of COVID-19, social distancing (or physical distancing) has been a key measure encouraged and implemented by public health officials around the world to limit the spread of the virus. It is, quite simply, the deliberate increasing of physical space between people to avoid spreading illness. The most recent medical advisories have described it as a set of measures that prescribes maintaining at least two (2) meters from other people, and generally avoiding crowded places and mass gatherings.
Thus, social/physical distancing necessarily requires a limitation on freedom of movement. It is a medical measure whose implementation has implications on fundamental legal concepts.
The imposition of Social/Physical Distancing by the National and Local Governments
In the Philippines, the National Government has declared an Enhanced Community Quarantine (ECQ) over all of Luzon, the nation’s largest island and where the National Capital Region (NCR)—the country’s political and economic center—is located. Several local governments all over the country not otherwise declared under ECQ by the National Government have since imposed an ECQ on their respective jurisdictions.
Under the ECQ, classes and school activities have been called off in all levels, mass gatherings have been prohibited, mass public transportation has been suspended, a strict home quarantine has been imposed on all households, and travel has been restricted to the accessing of basic necessities. The ECQ effectively allows only those private establishments that provide basic necessities and activities related to food and medicine production to remain open, and in any case, operating only with a skeletal workforce and under strict social distancing measures. Only private enterprises comprising the supply chain of covered products are allowed to operate at full capacity, but again, only if compliant with all relevant health and safety protocols, which includes social/physical distancing.
For its part, the Philippine Department of the Interior and Local Government (DILG) issued Memorandum Circular No. 2020-062 on 21 March 2020, directing Local Government Units (LGUs) to “enforce the prohibition on mass gatherings” since “[s]ocial Distancing is strictly enforced”. The DILG further directed LGUs to implement strict home quarantine, and issue gate passes to designated individuals per household to be allowed to travel and access basic necessities.
The implementation of these directives have been left by the National Government to the LGUs, which also have the authority and discretion to penalize violators.[1] Since these directives describe an exercise of police power, LGUs units may only exercise such powers through appropriate local legislation.
The ECQ is, in effect, the imposition of social/physical distancing by executive and legislative fiat.

Certainly, the ECQ has the effect of limiting rights guaranteed by the Philippine Constitution, such as the right to liberty; the right to peaceably assemble and petition the government for redress of grievances; the right to the free exercise of religion; and the right to travel. However, these rights have long been recognized as having their respective limits, namely: due process; the existence of a clear and present danger that that will bring about the substantial evil sought to be prevented; police power; and (most notably) the interest of national security, public safety, or public health, as may be provided by law. Thus, it is long recognized that these rights may be curtailed by Government when the foregoing exceptions are present.  
Private entities’ voluntary and internal imposition of social/physical distancing measures
Nothing in the issuances and proclamations of the National Government expressly describes or enumerates what social/physical distancing measures should be implemented by private entities. Its issuances regarding social/physical distancing measures are almost always addressed to national government agencies, the national police, the military, and LGUs. Even the law granting the President of the Philippines extraordinary powers to enact measures to respond to the pandemic only empowers him to ensure that all LGUs conform with the rules, regulations and directives issued by the National Government, and implement the National Government’s standards of Community Quarantine.
On the opposite side of the spectrum, private entities are left to determine the type of social/physical distancing measures they can and should implement, and how these measures are enforced. The need for defined standards is relevant, knowing that the ECQ cannot last forever and private entities are at a loss on what measures fall within their rights to implement once the ECQ is lifted and the economy is restarted.
This lack of parameters is especially relevant to commercial/residential condominiums and subdivisions, the administrators of which manage the common areas that are in close proximity and inextricably connected to people’s homes and residences. A lack of parameters may result in a lack of clarity as to how social/physical distancing measures are implemented, on what basis they can be enforced, and who may enforce them.

The power of private residential condominiums and subdivisions to impose social/physical distancing measures

Republic Act No. 9904, or the Magna Carta for Homeowners and Homeowners’ Associations, defines residential subdivisions as tracts or parcels of land partitioned into individual lots, with or without improvements thereon, primarily for residential purposes. These subdivisions may be administered by duly registered non-stock, non-profit Associations organized by owners or legal occupants of residential real property situated therein. If only to highlight the great number of residential subdivisions, there are 10,276 Associations in the NCR alone.
Owners or legal occupants of residential real property in subdivisions may be members of the Association, and would therefore be allowed to enjoy several rights. These include the right to avail of and enjoy all basic community services, and the right to use common areas and facilities. Members enjoy their rights for as long as they are not deemed as delinquent members, i.e. when they fail to pay dues, fees and assessments, or when they violate the Association’s by-laws and/or declared policies.
Associations, meanwhile, have the right and power to, among others: (1) Regulate the use of common areas, including, but not limited to, roads, parks, playgrounds and open spaces; (2) Regulate access to, or passage through the subdivision/village roads for purposes of preserving privacy, tranquility, internal security, safety and traffic order; and (3) Suspend privileges of and services to and/or impose sanctions upon its members for violations and/or noncompliance with the Association’s by-laws, rules and regulations. Associations are also required by law to complement, support and strengthen LGUs and National Government Agencies in providing vital services to their members and help implement national and local government policies, programs, ordinances, and rules. Thus, the authority of residential subdivisions—more specifically, their administering Associations—to impose social/physical distancing measures is broadly granted by law.
Residential/commercial condominiums are governed by a different law, Republic Act No. 4276, or the Condominium Act, which defines a condominium as an interest in real property consisting of a separate interest in a unit in, among others, a building and an undivided interest in common directly or indirectly, in the land which it is located and in other common areas of the building. The total condominium stock in the NCR’s Central Business District alone reached 130,090 units in 2019.
Relevantly, the corporate purposes of condominium corporations shall be limited to the holding of the common areas, to the management of the project, and to such other purposes as may be necessary, incidental or convenient to the accomplishment of said purposes. They may be empowered by the condominium project’s declaration of restrictions to promulgate and enforce rules and regulations concerning the use and enjoyment of the said common areas. Such power may include, for instance, the imposition of a temporary ban on the use of the common areas and facilities until assessments and dues in arrears are paid. Condominium corporations also have the general authority to adopt by-laws so long as they are not contrary to law, morals or public policy, and may exercise such other powers as may be essential or necessary to carry out its management of common areas.
One common feature of the common areas within both subdivisions and condominiums needs little exposition: both are private property owned by either the Association administering the subdivision or owned in common by holders of the condominium units. As lot/unit owners, they have the right to the enjoyment over the common areas and the right to exclude any person from the enjoyment of the same. Both the subdivision Association and the condominium corporation are guaranteed this right even as against the State, since they have the inviolable right to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures of whatever nature and for any purpose.
Interplay of Government and private entity authority
The brief study above reveals a murky interplay of Government and private entity authority as regards the power to impose and implement social/physical distancing measures.
The National Government’s social/physical distancing measures are highly dependent on and may only be given effect by the implementing issuances of National Government agencies and/or the implementing legislation of LGUs. Meanwhile, the power to enforce social/physical distancing measures of the administrators of residential subdivisions and condominiums is only generic and without any express compulsion under law to comply with Government’s version (if any exists) of social/physical distancing measures. The interplay of authorities is further muddled when it is considered that common areas are, in fact, private property that cannot just be policed and monitored by the Government without express legal authority. This highlights the need for cooperation and close coordination between public and private authorities for any social/physical distancing measures to succeed.
          One recent newsworthy incident in an upscale condominium in the NCR demonstrates the current murky interplay of Government and private entity authority to impose and enforce social/physical distancing measures. On the evening of 19 April 2020, news outlets started circulating reports of the forced entry by police officers into Pacific Plaza Towers in Bonifacio Global City, the most urbanized business district in NCR. The police officers supposedly intended to enforce the ECQ amid a complaint that home quarantine and social/physical distancing measures were not being followed at the condominium’s common areas.
          Pacific Plaza Towers Condominium Corporation considered legal action against several police officers for trespassing, since they had supposedly entered private property of Pacific Plaza Towers over the objections of building security and threatened residents with arrest.
The Condominium Corporation also alleges that it imposes and enforces social/physical distancing measures within the condominium’s common areas, claiming that it had “promptly complied with all the guidelines provided, including closing down our gym and our pool and practicing social distancing and the wearing of masks,” and it had properly coordinated with the LGU in keeping the common area open “for people to walk and sunbathe”.
          Without delving into the legality of the police’s presence in the condominium, the dispute presents two (2) central questions on the interplay of Government and private entity authority over the implementation and enforcement of social/physical distancing measures in common areas of residential subdivisions and condominiums:
  1. What is the legal obligation on the part of the Associations of residential subdivisions and condominium corporations to implement and enforce social/physical distancing measures?
  2. Who enforces social/physical distancing measures within the common areas?
Based only on reported statements, it appears that: (1) Pacific Plaza Towers Condominium Corporation had implemented and enforced its own social/physical distancing measures within common areas; and (2) there were reports that Condominium residents were supposedly not complying with social/physical distancing measures implemented under the ECQ. However, it also appears that: (1) the police and the Condominium Corporation differ in their interpretation as to what constitutes good or valid social/physical distancing measures; and (2) Implementing Guidelines (not an ordinance) regarding social/physical distancing measures under the ECQ were indeed issued by the Mayor of Taguig City on 17 March 2020, which nevertheless makes no mention of the application of such measures to privately-owned publicly accessible areas like common areas in a condominium.
            To resolve these central questions, it becomes evident that the legal framework governing the administration of common areas (by both Associations of residential subdivisions and condominium corporations) vis-à-vis the implementation of social/physical distancing measures to combat COVID-19 requires further fine tuning, since:
  1. A law, ordinance, or executive issuance must specifically task Associations of residential subdivisions and condominium corporations to implement social/physical distancing measures in their respective common areas. Current National Government issuances, read together with established jurisprudence on the power of LGUs to exercise police power, leave it to the LGUs to implement what these measures are through appropriate legislation.
  2. Without a law, ordinance, or executive issuance specifically tasking Associations of residential subdivisions and condominium corporations to implement social/physical distancing measures in common areas, there is no legal compulsion on their part to implement and enforce any such measures, in view of their very broad discretion.
  3. Without a law, ordinance, or executive issuance specifically tasking condominium corporations to implement social/physical distancing measures in common areas, the enforcement of policies relating to common areas falls exclusively on Associations of residential subdivisions and condominium corporations.
This, of course, presents the ridiculous and highly undesirable scenario of Government being powerless to police Associations of residential subdivisions and condominium corporations that neglect to implement social/physical distancing measures. Conversely, it may also present the equally undesirable scenario of Government overreach, where Government can impose arbitrary standards on social/physical distancing measures in common areas.
In the age of COVID-19, it seems intuitive that one of the best measures to flatten the curve and save lives is a good legal framework to be implemented and enforced with close coordination between Government and private entities. Gaps in the law must be immediately addressed by the National and Local Government. Enforcement of the law, meanwhile, requires the cooperation of the citizenry.
The implementation and enforcement of social/physical distancing measures within common areas of residential subdivisions and condominiums is no different. The current legal framework gives them very broad discretion, without necessary guidance and with practically no compulsion to implement and enforce such measures. Appropriate legislation from LGUs will certainly strengthen their ability to implement social/physical distancing measures consistent with the National Government’s, and apply them to privately-owned public spaces like common areas. At the same time, appropriate legislation can also allow Associations of residential subdivisions and condominium corporations to self-police more effectively, without having to further strain the National and Local Governments already stretched thin by the outbreak. It will also minimize the risk of potential Government abuse.
This article is intended for informational purposes only and should not be construed as legal advice. 
Published in Lexology at: