HOA Pools: To Reopen or Not To Reopen?
Do Homeowner associations in South Carolina face the possibility of litigation if they reopen their pools and other common areas?
There is no short answer on if it is or isn’t safe for common areas to reopen. All factors must be considered, such as If an HOA has a population at increased risk for the virus, it can make it more difficult for a board to decide what’s best. Reopening could require paying additional staff to regularly clean the pool area in a time when budgets are tight.
But a major concern is the threat of lawsuits as a result of reopening without the ability to follow all public health guidelines to the letter. There is a good chance the insurance an HOA has would not protect them from this kind of legal claim even if there isn’t a judgment ruled against the community.
HOAs have different insurance policies with their own guidelines on what is or isn’t covered. Depending on what coverage is guaranteed, the risk of reopening can be high.
Even if the lawsuit filed against an HOA doesn’t have merit in the eyes of a judge, it could still be costly to defend. While policies vary, typically HOAs do not have protection from pandemics or viruses like COVID-19 as it is not commonly covered in policies. This means if a board gets sued over a coronavirus issue, it will likely pay out of pocket for its defense.
Typically, HOAs have “directors and officers” insurance that protects the board members from the result of their actions or in-actions. An example could be failure to maintain common areas, like a swimming pool, as outlined in the HOA’s policies and the Covid guidelines.
IS THERE A LEGAL RISK
There is always a risk of someone filing a lawsuit, the question is do you have liability.
An individual getting the coronavirus after being on the HOA common area isn’t anymore of a legal risk than someone coming into your home, work, or you going to a store. How are you going to prove where the contraction occurred and what are your injuries from it? It is just as easy to assert that the “Plaintiff,” should be the “Defendant” as they are the party that spread it to everyone else.
The danger is not the fear of exposure to the virus, it is the fear of the costs of the litigation. That is why HOA’s and other business should have insurance to cover those legal costs. The best approach is to follow a guideline established in the community or through an organization. That is what we call a “standard of care.”
The HOA can do waivers, close bathrooms, not have chairs/tables, or open up with regular cleaning. Whatever you determine you are going to do – just make sure you follow the guideline established.
Conversely, if an HOA decides they are not going to open up is that a violation of the C&R’s/bylaws? HOA members pay to have those common areas and if an HOA is still requiring a member to pay, but fails to provide the amenities promised is the HOA exposed for a breach of their agreement?
The HOA has the ability to open it up and has chosen unilaterally not to, but continues to charge its members the same dues then I would say yes they have exposure. Simply put – the question may not be to open or not to open, but how to reopen as soon as you can with a determined policy based on the community standard.