Coops, condos and HOAs are itching to open up amenities that were temporarily closed because of the Covid-19 Pandemic. We are starting to be asked by boards and management for legal advice about opening up pools, gyms, public meeting rooms, roof decks, playrooms, etc. Every association is different but here are some tips that we believe will be helpful.
- To the extent authorized by the association’s governing documents and law, increased maintenance and cleaning expenses should be passed on to individual members using common facilities who fail to comply with applicable rules and regulations.
Most community association boards are generally and specifically authorized by their governing documents to make and adopt rules and regulations governing the use of the common element facilities. If your association has not already done so, the board should consider passing a resolution adopting new rules or amending current rules which impose on owners increased responsibility while using the common element facilities and specifically restrict the use of common facilities by owners and residents who are sick or may have been exposed to Covid-19. Such rules could require those who use the facilities to use appropriate sanitizing and social distancing measures. In which case, the association’s rules and regulations should entitle the association to impose upon the owner the increased costs or expenses associated with the increased cleaning as a result of their behavior. Adopting a disclaimer and waiver form for use of facilities could also cover this so that additional costs to make it safe are passed along to users as opposed to all owners.
- Levy fines for non-compliance and earmark fines collected for COVID-19 prevention related measures.
Once the association has adopted its COVID-19 related rules and regulations, the board should be able to enforce them against violators. The board could consider earmarking non-compliance fines to help pay for the increased costs and expenses related to COVID-19 prevention. Be sure to examine your governing documents to make sure fines are within the board’s power. If not a bylaw amendment may be required.
- Consider including a line item in the association’s operating budget for increased COVID-19 expenses.
The goal to keep your association community safe could be expensive. Rather than trying to figure out how to pay for it later, perhaps include a new line item in the annual budget. The other benefit is that owners will see (if they read the financials) that the board is proactively acting to make the community safe by planning ahead.
- Consider opening only those common facilities and amenities for which the association has developed an enforceable plan of action.
There is no one-size-fits-all COVID-19 plan, and any prevention methods and measures adopted by the board should be tailored to the specific association. There is also no requirement that the association open (or close) all common facilities and amenities at the same time. Boards could open one amenity at a time and see how it goes and then govern accordingly.
- Check with your insurance provider to see if there is coverage.
Before opening any amenity, boards and management should check with their insurance agents to see if their current insurance is adequate. We have learned that insurance companies are relying on exclusions in most policies regarding Covid-19 and not planning to cover certain losses. We will have to wait and see whether this turns out to be the case and whether new insurance coverage for such losses will be available at an additional cost. If there isn’t coverage for claims like people contracting Covid-19 at the pool and suing the association for not taking safety precautions, boards may decide not to open or to open only for persons who sign well crafted disclaimers and waivers. The trouble with those documents is that they may provide a defense to a claim, but the association may still have to pay to defend against it if there isn’t insurance coverage. Whether this is a risk the board wants to take will depend on the board. Boards that don’t want to take the risk themselves, could go to the owners for a vote on the matter and take the burden off of the board’s shoulders.
