Can Landlords Demand Residents Be Vaccinated?

Lew Sichelman

Apartment owners with more than 100 employees must now require their workers to either be vaccinated against COVID-19 or tested weekly to make sure they don’t have the virus. But what about residents?

A possible test case that could answer that question is rising in South Florida, where a landlord who owns some 1,200 units in eight multifamily communities in Miami-Dade and Broward Counties has told current and would-be residents they must be inoculated.

Resident vs. Landlord

Santiago Alverez told the South-Florida Sun Sentinel that more than a dozen of his residents have already died from the disease and he’s not interested in losing any more. “We have to be concerned about our (residents) and employees,” he told the local newspaper.

But at least one resident disagrees. According to another report, she has hired an attorney and filed a grievance with the Florida Department of Agriculture and Consumer Services. Her attorney has sent Alverez a letter maintaining that his vaccine policy flies in the face of Florida Governor Ron DeSantis’s order banning proof of vaccination by businesses.

Alverez, though, is brooking no excuses, blasting the phrase “Zero Tolerance” atop notices posted at his various leasing offices.

He later told the Washington Post that his employees are “exposed” to COVID-19 “all days of the week because there is someone who does not want to get vaccinated… If you don’t want to get vaccinated, I have the obligation and the duty to protect my workers and (residents).”

Under this landlord’s rules, existing residents will now need to be vaccinated to renew their leases and all new residents must show proof of vaccination prior to moving in. While his fiat has yet to draw DeSantis’s ire, it most likely will be challenged by the beleaguered governor, who has taken all kinds of heat for his stance on masks and vaccinations and has seen his popularity plummet because of it.

But Alverez’s attorney, Juan Zorrilla of Fowler White Burnett in Ft. Lauderdale, Fla., argues that the governor’s order does not apply. While the so-called “vaccine passport” ban bars requiring patrons and customers from proving they have had their shots, Zorrilla maintains that residents are neither customer or patrons.

“We believe that there is a clear distinction between someone who is an occupant of a dwelling and physically on the premises for an extended duration of time (as opposed to) someone who is a patron or customer and simply visiting for a short duration,” the attorney wrote in response to a letter from a residents attorney.

“By only identifying two categories of people who are transient, we do not believe the order would be interpreted by a court to include (residents) or residents of a business or property,” he said.

Eventually, this difference of opinion is likely be decided by the courts. But local attorneys already are lining up, depending on their respective practices.

A lawyer who specializes in real estate law told the Sun Sentinel that she believes the courts will find for the landlord because, unlike restaurants and stores, the landlord-resident relationship is contractual. But an eviction defense lawyer said the policy is discriminatory.

National Discussion

Nationally, there has been some discussion of the issue by members of the National Multi Housing Council but the group has not reached any sort of consensus, Paula Cino, vice president of Construction, Development and Land Use Policy, told Multi-Housing News. “We’ve done a lot of talking about (mandates) but the industry does not have a policy position,” she said.

Apartment owners are “mostly focused” on protecting their staff, Cino said, but the question of residents may eventually become “a bigger conversation” as some owners “explore” that possibility. So far, the NMHC has not heard of any other landlords implementing rules similar to those put in place by Alverez in South Florida.

The NMHC executive said that as of now, the organization is suggesting that members be guided by recommendations from local public health officials. But she warned that what they decide is “largely dependent on where you do business,” adding that what one owner does “may not be the right choice” for another landlord.

Meanwhile, reaction from individual landlords is a mixed bag. One who described himself as a pro-vaccine moderate said demanding that residents be vaccinated is “a slippery slope.” The prospect of such a mandate is “absolutely terrifying,” he said, asking not to be identified because of the sensitive nature of the issue.

But another landlord who also asked to remain anonymous said he favored the idea. “You may run afoul of local eviction laws, but the unvaccinated are not a protected class. And you have the high ground; you are doing your part to end the pandemic by making sure your (residents) are vaccinated.”

At the same time, Wanda Thomas of Arizona Tenants Advocates, said she has taken no complaints from residents on the issue. Besides, she added, such a dictum “wouldn’t be a problem,” at least for her. “You can take (the mask) off once your inside your individual apartment,” she said.