We have previously blogged about successfully re-opening the common area amenities during the COVID-19 pandemic. Homeowner Associations (HOAs) are tasked with various responsibilities, including the health and safety of their memberships. California has made it clear that all businesses and facilities must follow the industry guidance to reduce the risk of COVID-19 before reopening. Willfully disregarding the state government directives and subjecting the membership to COVID-19 exposure is antithetical to this purpose. As such, it is possible for HOAs to expose themselves to substantial liability if they re-opened the common area facilities using only a member honor system to enforce the industry guidance to reduce risk of COVID-19.
California has a new blueprint (“Blueprint“) for reducing COVID-19 transmission in the state with revised criteria for loosening and tightening restrictions on activities. Every county in California is assigned to a tier based on its test positivity and adjusted case rate for tier assignment including metrics from the last three (3) weeks. HOAs’ management should routinely check the restriction criteria that is respective to each HOA’s county. For example, as of December 30, 2020, Orange County and San Diego are under a Regional Stay Home Order meaning many non-essential indoor business operations are closed. Pursuant to government directives, gyms and fitness centers can open outdoors only with modifications. Indoor pools, hot tubs, saunas, and steam rooms must close. Also note that each county may impose further requirements that are stricter than the state government directive.
Understandably, HOAs have probably not accounted for a pandemic in their prior operating budget, so retaining extra personnel to enforce health guidelines would no doubt put a strain on already allocated financial resources. However, in the interest of being safe, HOAs should follow the Blueprint and industry guidance policies, particularly when it comes to re-opening common area facilities. It is quite difficult to rely solely on HOA members and their guests to conform with both California State and County guidelines regarding the re-opening of HOA common area facilities. There are always a few outlying members unwilling to cooperate and keep clean the common areas/equipment after usage, thus leaving HOAs in a situation where HOAs may become liable.
|As a reminder, HOAs and the Board of Directors have an obligation to keep common areas safely maintained to ensure the health and safety of their memberships. As such, re-opening HOA common area facilities without a proper plan, protocols, and monitoring system puts the safety of an HOA’s membership in question and is antithetical to an HOA’s overall purpose, which may subject an HOA to liability. HOA Boards should discuss the matter amongst themselves and reach out to their general counsel should the need arise.|
-Blog post authored by TLG Attorney, Vivian X. Tran, Esq.