Covid-19 changed a lot. Condominium, cooperative HOA boards had to change as well. Protecting owners and residents in this new world presents many legal challenges and potential liabilities. Mitigating liability should be on the minds of every board and their management’s.
We haven’t seen an influx of Covid-19 liability lawsuits yet, but they will surely come in time. Insulating community associations and their boards and managers should definitely be on the agenda. Particularly because the insurance industry has indicated that COVID-19 claims will not be covered by insurance per the broad disease and health exclusions found in most policies.
So, what can be done? First, be careful and thoughtful in decision making. Make sure the board has authority to do what it is doing or not doing. This can be tricky, especially with ever changing federal, state and local laws. Before a board makes a decision that has legal implications, consult with an attorney and get sound legal advice. Boards are allowed to rely on the advice of their counsel and that will be a defense if their decision making is challenged by owners or others.
Keep a historical record of the decision making in well thought out minutes and other documentation. Sometimes lawyers will advise just to take minutes on the actual decision made by a board and not add too much detail as it is not required. The other school of thought and advice is to include details when you know the minutes are going to be used to help defend a board’s decision. This is a minefield that seasoned advice can help navigate.
Some boards are considering amending their governing documents to protect against Covid-19 liability for the association and board members individually. As with all disclaimers of liability, they are not a shield against the association being found liable for failing to take reasonable precautions to protect against foreseeable harm or injury. So, a disclaimer of liability, while helpful, is not and should not be relied on by the board to allow it to ignore open and obvious threats or dangerous conditions and take reasonable precautions to avoid them. Amending governing documents, however, is not a simple task and usually requires a meeting of owners and a vote in favor of the amendment by a super majority of owners. After passing, the amendment typically has to be recorded in the land records as well. If successful, a disclaimer of liability for COVID-19 and possible future pandemics is not such a bad idea considering that we expect insurance not to cover this liability, or become very expensive to procure such coverage. Adding a buffer in the governing documents against claims for which, as mentioned above, the association will not likely be able to insure against, should definitely be considered.
During the pandemic, some boards have adopted written waivers for owners and residents to sign before using common element. This is a policy that should be employed moving forward and will give the association and individual board members cover from liability. We’ll have to watch and see whether such waivers hold up in court after they are tested in court cases, but they certainly can’t hurt as another layer of protection. Doing them correctly so that they do not run afoul any other laws, such as discrimination laws, however, is certainly important.
Here’s a sample of an Assumption of the Risk and Waiver of Liability Relating to Coronavirus/COVID-19 form that one condo association adopted. We do not recommend the form, but wanted to give you an idea of what some association boards are adopting. If your association is interested in adopting such a waiver, it should be tailored to your association. There is not a “one size fits all” form that should be used.
The novel coronavirus, COVID-19, has been declared a worldwide pandemic by the World Health Organization. COVID-19 is extremely contagious and is believed to spread mainly from person-to-person contact. As a result, federal, state, and local governments and federal and state health agencies recommend social distancing and have, in many locations, prohibited the congregation of groups of people.
The Board of our condominium association has put in place preventative measures to reduce the spread of COVID-19; however, our condominium cannot guarantee that you or your child(ren) will not become infected with COVID-19. Further, rental of a unit and participating in common area activities could increase your risk and your child(ren)’s risk of contracting COVID-19.
By using the common area facilities in our condominium, you voluntarily assume the risk that you and your child(ren) may be exposed to or infected by COVID-19 by renting and occupying a condominium unit, and/or accessing and using the common areas and amenities including but not limited to the pool, exercise and game rooms, tennis and basketball courts, and other common areas, and that such exposure or infection may result in personal injury, illness, permanent disability, and death. You understand that the risk of becoming exposed to or infected by COVID-19 at our condominium may result from the actions, omissions, or negligence of you and others, including, but not limited to, our condominium’s employees, and other renters and their families.
You voluntarily agree to assume all of the foregoing risks and accept sole responsibility for any injury to you or your child(ren) (including, but not limited to, personal injury, disability, and death), illness, damage, loss, claim, liability, or expense, of any kind, that you or your child(ren) may experience or incur in connection with our condominium or utilization of our condominium’s amenities (“Claims”).
On your behalf, and on behalf of your children, you hereby agree to release, covenant not to sue, discharge, and hold harmless the our condominium association, its Board, employees, agents, and representatives, and our condominium’s owners of and from the Claims, including all liabilities, claims, actions, damages, costs or expenses of any kind arising out of or relating thereto. You understand and agree that this waiver and release includes any Claims based on the actions, omissions, or negligence of the our condominium and its Board, employees, agents, and representatives, and our condominium’s owners whether a COVID-19 infection occurs before, during, or after your occupancy of a unit or use of the common areas at our condominium.
Again, each association is different and requires specific legal advice in order to protect itself from liability and other exposures. Staying ahead of the curve and doing everything legally and reasonably possible to do so, is important.
