As the seesaw battle of the COVID-19 pandemic continues, HOA boards and managers are torn between the fear of reopening amenities and the desire of residents to enjoy their use. Pools, gyms, and tennis courts are hot issues now as HOAs try to return toward normalcy.
Most County Health Departments have specific guidance regarding reopening amenities such as pools, gyms, or tennis courts. In addition, the Center for Disease Control (CDC.gov) and the California Department of Public Health have helpful on-line information. The Community Associations Institute published a comprehensive ten-page document titled “Healthy Communities,” addressing HOAs and the COVID-19 pandemic. It can be found by visiting www.caionline.org or by an internet search for “CAI Healthy Communities.”
Liability concerns regarding reopening involve at least two areas – alleged carelessness regarding reopening the amenity or guaranteeing the users’ safety. Most counties have established minimum guidelines of operation regarding reopening of amenities, and HOAs should meet those standards. That can be powerful evidence that can help the HOA in the event a user tried to cast blame for contracting the virus.
Another problem is appearing to make a promise the HOA cannot keep. If the user follows all the usage rules, does that guarantee that the user will be safe from the virus? Of course not, so avoid making statements that promise that the rules are to keep the users safe from the virus. It is better to warn users that there is no guarantee the guidelines will prevent any virus transmission, that there is always a risk of other users failing to follow safe practices, and that users should decide upon the level of risk they are willing to accept.
Many HOAs are rushing to have all users sign blanket waiver documents purporting to release the HOA, its board and management from any liability. Consult with HOA legal counsel about the enforceability of blanket releases and consider if the HOA has sufficient staffing to ensure that each user signs the release.
California law allows boards to adopt emergency rules, and rules to reopen amenities during the pandemic would fit that description. Those rules should be adopted by the board in open session, and legally only have a maximum duration of 120 days.
Consider posting the emergency rules at each amenity entrance, along with a disclaimer reminding users that the rules are no guarantee of safety.
Be careful to avoid creating unenforceable rules. Some of the guidelines are not mandatory. Also avoid creating rules the HOA is unable to enforce.
One method of enforcement is to have a staff person monitoring compliance, but many HOAs are unable to dedicate a staff member to monitor each amenity. Consider the option of having residents report violations by users.
The rules are connected to serious health safety considerations regarding a virus which has killed over 120,000 Americans. This might merit a larger than normal fine. Remember that fines should not be punitive but should be a deterrent.
Finally, remember that while reopening of HOA amenities is not mandatory, the emotional health of community residents may benefit greatly from a thoughtful and carefully phased reopening of amenities as permitted by local government.
This is a tough time, but we will all get through it. Stay safe and stay healthy.
Kelly G. Richardson Esq., CCAL, is a Fellow of the College of Community Association Lawyers and a Partner of Richardson | Ober | DeNichilo LLP, a California law firm known for community association advice. Submit questions to Kelly@rodllp.com. Past columns at www.HOAHomefront.com. All rights reserved®.