PANDEMIC AFTERMATH:

COMMON FACILITIES

MR. A.J. JAHANIAN, ESQ., BEAUMONT TASHJIAN

It is no secret that the novel coronavirus (COVID-19) pandemic has thrusted our community into the throes of an unprecedented situation, forcing community leaders to make timely, sweeping, and in many cases, inconvenient decisions.

On the heels of California Governor Gavin Newsom’s Executive Order N-33-20, which ordered all California residents to stay at home and practice safe social distancing to help “flatten the curve,” many managers and board members worked together to take immediate action and heed the directives of public health officials. This included effectively shutting down access to all association common facilities, such as fitness centers, parks, pools and spas, screening rooms, etc.

As we have progressed through the pandemic and seen some state and local municipality officials suggest re-opening certain aspects of society to the public, community association residents may be taking note, wondering when their common area facilities will re-open as well. Re-opening facilities may be of particular concern, in light of the impending summer weather.

At the outset, any re-opening plan for the community should proceed with extreme caution and take into consideration the demographics and structure of the community. A community with a particularly highrisk population (i.e., 55+ age restricted communities) that is especially susceptible to the worst side effects of the virus, may determine that re-opening the facilities is premature, absent the development of a vaccine or data/literature suggesting a low or lower mortality rate of the virus.

Further, a decision to re-open should be made, based upon the recommendations of local, state and national health experts. However, even with a complete relinquishment of stay at home orders by state and/or local officials, boards should exercise caution to mitigate the risk of unnecessary liability or exposure.

For example, social distancing protocols and respiratory etiquette (i.e., wearing face coverings) are the new norm, at least in the immediate future. Re-opening the facilities therefore, requires a calculated, phased approach, depending on the circumstances. Enforcing social distancing at a community pool, for example, may be more difficult (hence why many county health officers have ordered the closing of all public pools) than in other facilities, where residents can be asked to schedule access in advance, one at a time.

Boards may decide to open only those facilities or areas, at this time, where it can best ensure, or at least increase the likelihood of maintaining the Center for Disease Control’s (“CDC”) and other’s health guidelines (i.e., social distancing). If prudent, parks or other large open spaces may be opened for use by individuals or members of the same household. Fitness centers on the other hand, which are often harbors of germs, should remain closed at this time, unless strict enforcement measures can be implemented (i.e., one-hour pre-scheduled reservations for a single resident [depending on size of the facility] with intermittent cleaning, etc.).

These general rules of thumb may also apply to other common area facilities such as tennis courts, pickleball courts, basketball courts and pools and spas. The key items to consider, again, are the demographics and structure of the community, current state and local health officials’ guidance and recommendations, and the nature of the common area facility in relation to the association’s ability to enforce/promote social distancing and other protocols.

Tennis, for example, is a sport that requires social distancing by nature. Basketball and swimming on the other hand, encourage greater person-to-person contact. However, in the latter instances, if the board determines that there is significant value of opening these facilities to the community, compared to the potential for risk and exposure, and the ability to ensure social distancing, etc., the board may make a determination to re-open.

Likewise, a decision to re-open any common area facilities should be voiced to the community through individual notice, which outlines precise guidelines for use of the facility. For example, use of the facility should still be subject to social distancing rules, as defined by the CDC’s guidelines (i.e., maintaining a distance of at least six [6] feet), wearing of facial coverings, exercising respiratory etiquette, etc. Similarly, the community swimming pool may be opened, subject to restrictions against gatherings, total removal or at least rearrangement of furniture (to promote social distancing and discourage gatherings, minimize surfaces for the virus to survive on, etc.), occupancy and use limitations, frequent cleaning of appurtenant restrooms, increased inspections of pool cleanliness/chlorine chemistry, etc.

If the facility will be limited to use by reservation only, the procedures for reserving should be described therein as well. Reservations should be limited to use by a single individual or members from the same household only (again, depending on the size and nature of the facility and other circumstances) and take into consideration the board’s ability to enforce the rules, ensure social distancing, and clean/sanitize the area between uses, if necessary.

Finally, prior to re-opening a particular facility and subsequent use, boards should consider having residents sign off on waivers which state that the association cannot be held responsible if a resident contracts the virus in connection with their use of the facility.

Ultimately, these issues are to be ironed out on a case-by-case basis, with consideration for the unique structure and needs of each community, as well as the nature of each specific common area amenity. If ever unsure, community leaders are strongly encouraged to consult with legal counsel, to determine how best to navigate this unchartered territory. We are all in this together, striving to break through to the other side of this pandemic as a stronger, better prepared, and more unified community.

A.J. Jahanian, Esq. is an associate attorney with Beaumont Tashjian, where he devotes his time servicing the unique needs of the Firm’s clients throughout California. His devotion to residential and commercial common interest developments for the entirety of his career make him specialized to advise boards and management in the preparation and enforcement of governing documents and contracts, risk management, dispute resolution, fair housing compliance, and all other issues impacting community associations. Mr. Jahanian also handles matters related to the levying and collection of assessments.