HOAleader.com - Tip of the Week - May 29, 2020
Published: Fri, 05/29/20
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COVID-19: How Condo/HOA Boards are Deciding Which Facilities Owners Can Still Access
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In this tip, we offer suggestions on what amenities must be shuttered and which can stay open. Can pools stay open? What about running trails? What about tennis courts?
States' executive orders are sort of all over the map on what's permitted and not when it comes to leaving your home in COVIDworld. They're called stay-at-home orders for a reason, though most of them allow some activity, from heading to necessary appointments to walking the dog or jogging while social distancing.
How do you know which facilities to close and which to allow owners to use at their own risk? The easiest decisions on which recreational facilities should be closed are those that allow contact sports—your basketball court, for example.
But most associations are closing nearly all facilities because they simply can't police how the spaces are being used. "Here in California, when the governor issued the stay-at-home executive order on March 19—and then it was updated after that—the order basically said that public recreational facilities would be closed, such as parks, swimming pools, basketball courts, and tennis courts," says Andrea L. O'Toole, a Walnut Creek-based principal at Berding Weil, a law firm that does only community association law throughout the state. "A lot of associations followed suit, and after that, a lot jumped and closed the rest of their recreational facilities, too.
"I do have clients who've asked whether their facilities could stay open because the spaces aren't public," she adds. "My response has been that if the state and county governments were doing it, it would probably not be a good idea to continue leaving these open. But it really comes down to the board determining whether leaving them open is in the best interest of the association and not in violation of some law.
"It's unclear whether California's executive orders apply to private property or not," says O'Toole. "But our recommendation to our clients is that they shut those facilities down because there isn't a good reason to take that risk. Every day, there's new information on how the virus can be contracted. We first thought it was best to stay six feet away. Then recently we found out that if you're running, it's further away.
"I tell the boards to do what they think is right, but out of an abundance of caution, I'd recommend closing," she notes. "People will be upset, but you won't have liability issues. However, it's very unlikely that if someone uses those facilities and ends up contracting the virus that there's any chance they contracted the virus because of the use of that facility. So there's probably not much liability. But you're not closing these facilities because of liability but to keep people safe. We have to make difficult decisions to protect people from themselves."
Overall, O'Toole says nearly all of her clients have shut facilities down. "Usually, it's one or two people on the board who want to remain open, and the board is split as a result," she says. "We just tell people: We're not going to tell you have to shut down. But if you're looking for a recommendation, ours is to shut facilities down."
Then there's the question of other facilities that could, maybe, possibly stay open safely? Get advice on those less-obvious answers in our new article: https://www.hoaleader.com/members/4127.cfm
Best regards,
Matt Humphrey
President
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