On April 28, 2021 the South Carolina Governor signed into law a bill that creates some protection for many homeowners associations and condominium associations from potential coronavirus claims.
The bill (S147) creates broad immunity for health care facilities, government agencies, and legal entities, whether they are regular business entities or nonprofits, regardless of how they are organized (so nonprofit corporations, LLCs, etc.). These are what the new law calls the “covered entities.” The law also specifically creates protections for any director, officer, employee, agent, contractor, third‑party worker, or other representative of one of the covered entities. These are considered to be “covered individuals” under the new law.
The protections granted by the new law are available if a covered entity “reasonably adheres to public health guidance applicable at the time the conduct giving rise to a coronavirus claim occurs.” So long as a community has taken reasonable steps to comply with public health guidance then they should be able to avail themselves of the protections of this new law.
But, it is important to note that the coronavirus immunity granted is not absolute. If a claimant can still prove by clear and convincing evidence that a covered entity or covered individual caused the coronavirus injury or damage by acts or omissions that amount to (a) grossly negligent, reckless, willful, or intentional misconduct or (b) resulted from a failure to make any attempt to adhere to public health guidance, then there may be no immunity in those circumstances. These are high bars to reach for any potential claimant.
The immunity offered is also not perpetual either. Instead, it covers claims ranging from March 13, 2020 and June 30, 2021—or 180 days after the final state of emergency is lifted for COVID-19 in South Carolina, whichever is later.
For most HOAs and condos the new law should be an added layer of protection. But, there are some homeowners associations or condominiums that may not be entitled to the protection of this new law. Because of the way that it is worded, the immunity granted to a homeowners association or condo would only apply if it was an incorporated legal entity—so unincorporated homeowners associations or condos are probably not covered by the new law.
If you have any questions about this new law or its effects on your homeowners association or condominium, contact one of our South Carolina community association attorneys with Law Firm Carolinas.