Institutions of higher education have undergone vast changes over the last several months from closing down campuses with a few days’ notice to shifting coursework online and transitioning to function as a “Zoom University.” Over the summer months, colleges and universities have had to prepare to implement the new Title IX regulations as well as review and implement federal and state COVID-19 guidance, sometimes mandatory and sometimes advisory, to plan their return to campuses. As colleges and universities ready to resume operations for the fall semester, they will receive repeated questions from students, parents, and other community stakeholders with regard to off-campus housing. While this alert focuses on Pennsylvania law and government orders related to COVID-19, most universities will find themselves in a similar situation in their states; it would be difficult for a student or an off-campus landlord to impose third-party liability on an institution of higher education for personal agreements between a student tenant and a landlord.

COVID-19 Guidance and Orders

Businesses and institutions across the country have received directives from federal, state, and local officials since the beginning of March when the first COVID-19 related government orders and guidance documents were issued. In Pennsylvania, institutions of higher education are required to comply with no fewer than five executive orders related to building safety measures (4/5/2020), worker safety protections (4/15/2020), current green phase operational restrictions (5/27/2020), face covering requirements (7/1/2020), and COVID-19 mitigation restrictions on gatherings and other capacity limits (7/15/2020). In addition to those orders, the Pennsylvania Department of Education maintains a preliminary guidance document for postsecondary and adult education institutions (6/3/2020).

While we have learned over the last several months that perhaps the most effective COVID-19 response in the United States for the short term will come from community buy-in to all of the various mitigation efforts, many of the COVID-19 related orders impose obligations on businesses and institutions. For example, universities are responsible for implementing sanitation protocols at sites they own and/or operate and are required to enforce a face covering mandate while students and others are on campus.

Current Pennsylvania COVID-19 orders do not require colleges and universities to mandate COVID-19 compliance while individuals are off-campus. However, some Pennsylvania courts have found (pre-COVID) that institutions of higher education could actually assume liability for what happens off-campus when they attempt to regulate off-campus conduct. The few Pennsylvania cases that deal with this issue address assumption of duties and query whether the college assumed a duty to students off campus, such as whether the university assumed a duty to regulate consumption of alcohol at off-campus parties.  

Affiliated-But-Non-University Housing

Schools have taken advantage of non-traditional student housing options over recent years, including public-private partnership transactions (P3), ground leased developments, and other sorts of affiliation agreements whereby an unrelated third-party developer builds and/or operates an off-campus living facility which is at least somewhat integrated into the campus community but retains certain (significant) characteristics which make it independent housing.

When students contract to live in affiliated housing, they generally sign a lease agreement with the third-party independent landlord, as opposed to a traditional dormitory license agreement with the university. Institutions are not normally parties to these agreements, and institutions are usually keen to limit any connections to affiliated housing facilities to a marketing relationship. In these circumstances, institutions would only be liable for  COVID-19 events or compliance with COVID-19 orders and guidance related to that affiliated housing if they assumed responsibility under an agreement or are subject to another statutory or common law duty. There is no statutory duty in Pennsylvania for colleges and universities to monitor COVID-19 compliance off campus, and Pennsylvania courts have largely refuted in loco parentis liability for colleges and universities in recent years.  Yet these institutions could inadvertently assume responsibility by asserting authority in off-campus spaces, such as affiliated housing. If universities begin imposing COVID-19 requirements in off campus housing, or lease space from a third party to offer as dormitory housing, then universities could face COVID-19 mandates from the Commonwealth of Pennsylvania or private lawsuits.

Interactions with Off Campus Landlords

Another issue many institutions may face during the upcoming fall semester is the possibility of changing on campus learning plans and sending students home and/or requiring the more remote learning. Although in these circumstances colleges and universities might choose to send students living on campus home and possibly refund room and board fees, students who live in off-campus housing might not be so fortunate.  Their individual landlords might refuse to let students out of their leases. Benefits of living off-campus come with the detriments, including lack of institutional support for housing-related issues.

In the event a student attempts to break a lease due to his or her classes moving online or material limitations to his or her use of campus facilities, institutions of higher education will likely have no liability to independent third-party landlords. Colleges and universities typically do not guaranty lease agreements with third-party landlords.  That should obviate any claims such landlords might have against institutions. Legal doctrines related to fraudulent inducement and tortious interference which could theoretically impose liability against colleges and universities require such institutions to act in bad faith or to act with an intent to harm the third-party landlord.  This should not pass muster for institutions acting in good faith with regard to the rapidly changing COVID-19 orders and guidance at the federal, state, and local level.

Institutional Liability for Students in Off-Campus Housing

Similarly, students wishing to breach a lease for off-campus housing will likely not have claims against the university for fraud or other grounds so long as universities act in good faith. And even though common law doctrines such as frustration of purpose or impracticability of contract might act to preserve a student’s rights to breach a lease, those doctrines act as defenses to claims by off-campus landlords for unpaid rent and breach of lease and not as bases for offensive claims against universities.

These are challenging times for colleges and universities as they grapple with the ever-changing dynamics of COVID-19. While much is novel in these times and COVID-19 orders and guidance are far-reaching, those orders and guidance do not generally override years of established principles of contract and real property law.