The board of directors of a homeowners association is authorized to own, operate and maintain the common areas, including the recreational facilities. The board is also charged with the duty to ensure the safety and welfare of its members. Under the circumstances of the coronavirus, the board could make the decision to temporarily close the pool and gym out of safety concerns for its members “without getting in trouble.” The decision to do so, exercised in good faith and in furtherance of the interest of the homeowners association and its members, would most likely be protected under the business judgment rule. Moreover, the cost and expense of operating the pool and gym during their temporary closure would be suspended. This could reduce next year’s assessment for these budgeted items.
Shapiro Gettinger & Waldinger, LLP
118 N Bedford Rd
Mount Kisco, NY 10549-2553
I really do not see any easy answer as each owner pays assessments partially for the use of amenities like the pool and gym. Closing these due to the fear of the spread of a virus that has not infected anyone within the Association would be doing so without legal justification. However, if residents of the Association did, in fact, become infected with the virus, then the Board may have a defensible position.
Hellmuth & Johnson, PLLC
8050 West 78th Street
Minneapolis, MN 55439
Boards are generally authorized to impose reasonable rules and regulations concerning use of common elements (including amenities). If based on objective criteria (such as CDC or health official recommendations), a temporary closure should be enforceable as an act to further the best interest of the association. I suggest that the board consult with local health officials and experts, and then freely communicate its findings and resulting decisions.
Stefan Richter, Esquire
Clemons, Richter & Reiss, PC
107 East Oakland Avenue
Doylestown, PA 18901-4682
The short answer to the question is – it depends on the severity of the situation. When individuals buy into private communities such as a condominiums and homeowner associations, they expect access to certain common amenities and services, in exchange of payment of common charges or assessments. Naturally, if access to common amenities such as a gym or pool is prohibited for any reason, owners are going to feel that they are not getting what they pay for.
Qualified private communities elect boards to govern. Board decisions are evaluated under the Business Judgment Rule (the “BJR”). The Business Judgment Rule will typically immunize a board from liability for an “unpopular” decision if there is sufficient evidence that the board acted in good faith and in the best interest of the community as a whole.
In my opinion, a board’s decision to close a pool, gym or other common area such as a clubhouse or tot lot for health or safety reasons would be found acceptable under the BJR but only if there is sufficient evidence of likely and imminent threat of exposure. For example, if an owner (or tenant) has been diagnosed with the Coronavirus or other contagious disease and is a known user of one or more of the common facilities, then in my opinion, the closure(s) would likely be deemed acceptable under the BJR. If however there is no imminent threat of exposure I believe there are other less extreme measures that could be taken to avoid denying owners/occupants access to the common facilities. For example, a board can install sanitizing stations through the common areas, encourage their owners to wash their hands regularly and/or avoid common facilities if they are sick. Boards should also ensure that common areas are being thoroughly cleaned on a regular basis. These steps would support a board’s decision not to close the common facilities should such decision be called into question. However, if a threat of health or safety risk becomes more imminent at any point in time, then in my opinion, closures would be justified.
At this point it may be a moot issue based on everything that’s out there. I’d still suggest that the Board has the authority to close or shut off any amenity for a limited time in case of public health or safety challenge, and COVID-19 certainly qualifies.
Austin Law Firm, LLC
226 E. Market Street
York, PA 17403