With everyone on high alert because of the coronavirus (COVID-19) we get a number of questions every day about how community associations (HOAs and condos) should react and what should be done. One of the questions we’ve received a lot lately is whether the association should close its common areas. The answer, as with most legal things, is “it depends.”
First, most community associations are nonprofit corporations and are obligated to do whatever any state or local government or health department has said should be done. For a great discussion on general steps your community should take to deal with coronavirus concerns, read this article by Jim Slaughter, who has authored several articles in the past few weeks.
What All Communities Can Do
As we’ve heard from multiple sources already, there are certain steps that all communities can probably take with their common areas to help:
- The association should certainly cancel or postpone organized events scheduled for the common areas.
- Install sanitizer or hand wipe dispensers or make them available for the use of owners and their guests
- Disinfecting high traffic areas, more extensive cleaning, additional wiping and sanitizing of common area surfaces
- For a good discussion of what to do with your community’s meetings, read Jim Slaughter’s earlier article on holding online meetings and electronic voting.
Here are at least some of the factors that your community board of directors may consider when thinking about possibly closing common areas or amenity areas:
Depends on What Amenities You Have
Different communities have different common areas and amenities. Some might make a lot of sense to close—like pools or small gyms where it is more likely that people will be in close contact with each other, or are in physical contact with things someone else was just using (we normally are hesitant to use that weight bench right after someone else got done anyway, but now we’ve got an added excuse!). Some communities have amenities where food is served, like a coffee shop or fitness store attached to a gym. Other communities might have nothing more than a large park or field. It might make less sense to close those since it is less likely that people will be in close proximity. Other amenities could include a clubhouse, workout rooms, playgrounds, dog parks, running or walking trails, tennis courts, etc.
The Type of Community Makes a Difference
Townhomes and especially certain condominiums are designed to put people in closer proximity to each other. In some communities owners may share hallways, elevators, or other entry or lobby areas. So it may not be possible to avoid areas where other folks are. In single family communities we don’t run into each other as often.
Practically speaking, even if a board makes a decision to close the common elements, it may not be possible to physically prevent people from using some of the common areas. Certainly we may be able to lock or secure doors to some amenities, but for others—like a park—preventing access is harder. Boards may be concerned about being heavy-handed and may have limited resources available to actually prevent access to some amenities.
Owners Primarily Responsible
It is important to remember that in a homeowners association or condominium, each owner is primarily responsible for their own health and safety. While the board of directors should certainly take steps to comply with health professionals’ advice, protecting the health of community members is beyond the scope of what homeowners associations are responsible for. It is simply not a part of what community associations are designed to do. And, unlike legal responsibility in a court case, accurately determining the cause of sickness is often just guesswork—there may be no way to know for sure how a person got sick. Individuals must exercise caution to take medical professionals’ advice on limiting contact, keeping distance from others, washing hands and sanitizing frequently, not touching your face, covering sneezes, etc.
Boards should seek the opinion of medical, legal, and insurance professionals to better understand the parameters of how making this decision impacts their association. For instance, does the Association’s Directors & Officers (D&O) policy contain exclusions for bacteria and viruses—most do.
No matter how much caution any community exercises it may not be possible to fully insulate from the virus concerns we’re experiencing now. Any board of directors should keep itself aware of the changing conditions and best practices to reduce the possibility of transmitting disease and exercise its best business judgment.
Black, Slaughter & Black attorneys are licensed in North Carolina and South Carolina. For specific questions about your community, reach out to one of our community association attorneys.