Below is a compilation of questions and answers addressing various issues we have addressed for HOA Boards and owners during the COVID-19 pandemic. The answers below should not be viewed as specific legal advice. Rather, the answers should be viewed a starting point for further analysis.
Q: Can we close our gym, business center or other shared facility because of COVID-19?
A: The answer is almost always “yes.” As the number of COVID-19 cases increases in Arizona, many boards are faced with a difficult business decision — should we (and can we) close common facilities? Most governing documents provide clear authority to the board to “operate, manage, and supervise” common facilities, which could include suspending the operation of these common facilities.
If the board believes that closing a gym, business center or community facility is in the interest of the health and safety of residents to minimize the spread of disease, this is arguably a defensible, sensible business decision under the governing documents. If a board makes this kind of decision, we recommend making the rationale clear in a written communication to the members.
Q: Should HOAs carry out enhanced cleaning of the common areas?
A: Probably. The CDC has indicated that the virus is vulnerable to wipe-downs and cleaning solutions, so enhanced cleaning should help. However, we recommend the HOA not represent that the common areas are “virus free.”
Q: Can HOAs legally prohibit guests from entering the community during this time?
A: Probably. Many HOAs are now prohibiting all nonessential guests from entering their communities at this time to minimize their residents’ exposure to COVID-19. Should you choose to make such a rule, caretakers and immediate family members of residents should be excluded from the prohibition.
Q: What restrictions have HOAs placed on short-term rentals because of the pandemic?
A: As HOA residents voice growing concerns about people coming from unknown places, any such restrictions, if limited in scope, are likely to be deemed valid if scrutinized by a court.
Q: Should board meetings be held during this time?
A: Any nonessential meeting should be postponed. If a meeting cannot be postponed, association boards should move it to an electronic meeting whether video or telephone.
Q: What about enforcing mask policies and monitoring social distancing in common areas?
A: In light of cities, towns and municipalities passing mask rules, any enforcement of a mask or social distancing policy by an HOA would likely be deemed “legal.” However, monitoring and enforcing would be extremely difficult. So, many communities have left these guidelines as discretionary, and placed signage throughout the common areas requesting that members honor the requests.
Q: Should an association ask residents to sign a waiver when they open amenities? If so, what specifically should be included in the waiver?
A: If an association board and/or community manager decide to have their residents sign waivers to use certain community amenities, the waiver should include:
• The resident/guest understands the risk assumed when using the specifically identified amenity;
• The resident/guest understands that the association cannot guarantee the amenity is COVID-19 free;
• The resident/guest is choosing to use the amenity at their own risk;
• The resident/guest agrees and acknowledged that they will not sue the HOA if they contract COVID-19;
• The resident/guest agrees to abide by all social distancing suggestions, including wearing a mask.
If you have questions about these decisions, please contact me at patrick@mandglawgroup.com or 602-533-2840.
Patrick R. MacQueen is a founder of MacQueen & Gottlieb, PLC.
