Page 6 - New England Condominium May 2021
P. 6

 -MAY 2021   
Liability, Cost, & Reopening Amenities 
The Summer of COVID-19, Round 2 
Last spring, amidst the panic and confu- 
sion of the burgeoning pandemic, condo- 
minium, co-op, and HOA communities were  
faced with the difficult task of deciding what  
to do about their shared amenities. Gyms,  
pools, clubhouses, and other popular ameni- 
ties were closed as a hedge against infection  
by a little-known enemy—though commu- 
nity leaders and boards of directors hoped  
at the time that the closures would be tem- 
porary. The thinking was that as more was  
known about the virus and its transmission,  
and then as the pandemic waned, a return to  
normalcy would await us. 
Now, a full year into the worst public  
health crisis in over a century, we seem to  
be faced with conditions not much differ- 
ent from back then. While our knowledge  
about the virus is certainly greater, and  
mass vaccinations are underway through- 
out the United States, we’re still facing a  
second summer of COVID-19—now with  
new factors of increased costs and liability,  
continued misunderstanding of the short-,  
medium-, and long-term realities of CO- 
VID-19, and perhaps most difficult of all  
to maneuver: politics. 
At the heart of the matter is whether  
boards and residents are comfortable with  
reopening, and what the basis for their de- 
cision to do so or not is. “Most adoption  
of rules for reopening gyms are born out  
of Department of Health and Governors’  
office recommendations and regulations,”  
says Dan Wollman, CEO of Gumley Haft,  
a real estate management firm in New  
York City. “In those buildings where we  
have opened or are planning to open gyms,  
we are suggesting a ‘one person, one fam- 
ily,’ policy. In New York, the Department  
of Health does a virtual inspection, start- 
ing with your building canopy to confirm  
your address. They then render a decision  
of whether or not you can reopen based on  
a video tour. It takes some time. With re- 
spect to other amenities—for instance, we  
have one building with an open-air space  
on a garage roof with benches, trees, and  
walkways—rules were promulgated by  
board members with our counsel, using  
reasonable common sense based on how  
one  can  catch  COVID-19.  For  example,  
they instituted time limits and sign-ups to  
use the space.”  
Perhaps the greatest impediment to com- 
munities reopening their amenities—even in  
full compliance with CDC and other health  
department recommendations—is the fear  
of liability. Surveys of insurance providers  
and brokers have indicated that insurers have  
taken a position against most if not all CO- 
VID-19 claims, stating that viral infections  
and whatever results from them are excluded  
under existing coverage and policies. Insurers  
refusing to entertain any claims potentially  
moves liability to associations, corporations,  
and even individual board members—a risk  
many are loath to take on. Hence, there is a  
high likelihood that many community ame- 
nities will simply remain closed this spring  
and summer. 
Joe Balzamo is the COO of AR Manage- 
ment, a property management firm located  
in New Jersey. According to him, “One of the  
biggest problems right now in terms of open- 
ing amenities is that insurance companies  
don’t cover viruses, etc., as part of their cover- 
age. The impact is simple: if someone gets sick  
and sues the association, there’s no ability for  
the insurer to validate the litigation. Associa- 
tions would own the litigation and the claim.  
All the risk is on the association.” 
Glen Masullo, president and managing  
partner with Preferred Community Man- 
agement Services located in Somerset, New  
Jersey, concurs. “A major block to unilaterally  
opening  pools  and  other  community  ame- 
nities is legal issues. Insurance doesn’t cover  
these claims currently. Members of the board,  
association, and even vendors can be sued  
personally. As concerns this coming season,”  
continues Masullo, “the insurance issue hasn’t  
gone away.”   
 “There are always liability concerns,” says  
Scott Piekarsky, an attorney with Phillips  
Nizer in New Jersey. “People may get injured  
due to the pandemic through infection. We  
have these concerns again this year—people  
getting ill, and the ramifications of that. Aside  
from health and safety and legal compliance,  
one big issue is what insurance companies  
will cover. A condominium association is a  
business, and boards have a fiduciary duty  
to protect the members. We are hearing  
now that if someone gets COVID and sues  
the association, insurance will not defend or  
indemnify. No defense and no payout, until  
this is adjudicated. Coverage litigation actu- 
ally started last summer, and I think we’ll see  
an increase in cases—we’re seeing it now, and  
eventually we may have a category of cases  
called ‘COVID-19 cases’ being filed in the  
Another serious issue facing boards if they  
decide to reopen their amenities is the cost in- 
volved with doing it. Various agencies at the  
state and  local  levels have  established rules  
for social distancing, masking, and cleaning;  
some even have requirements for extra clean- 
ing staff and personnel to observe and main- 
tain crowd control within the amenity area.  
Such rules may make it impossible for some  
communities to foot the additional costs in- 
volved with reopening.    
Stephen DiNocco, a principal with Affin- 
ity Realty and Property Management, located  
in Massachusetts, recounts that last year the  
board of health that governs some of his com- 
munities “made such difficult rules that many  
communities couldn’t open.” In one case, he  
says, “the property had more than 1,000 resi- 
dents, but the regulations didn’t permit more  
than 20 people in the pool at one time. After  
one use of the bathroom, it had to be cleaned  
and disinfected. The children’s pool wasn’t  
permitted to be used at all. Many boards are  
saying it’s just not financially practical to re- 
open. Too much additional personnel for su- 
pervision and logistics—they can’t afford the  
extra staff.” 
Understanding the Realities of  
Another factor in planning for the sum- 
mer and the future in general is the way board  
members and residents of condominium as- 
sociations and co-op corporations under- 
stand and view the crisis. Is it long-term, or  
will it end and life return to pre-pandemic  
The  facts on  this  are  still  unclear, but  
there is a growing consensus in the medical  
and scientific communities that COVID-19  
will be with us for a long time, if not forever.  
While the national vaccination campaign is  
underway, increasing evidence points to this  
virus looking a lot more like the flu (reemerg- 
ing with varying severity each season) than  
something like polio (eradicated completely  
after vaccination of the general population).  
It’s unlikely that vaccination for COVID-19  
will be ‘one and done.’ Some of the current  
vaccines require two doses, and with talk of  
new variants daily, experts are increasingly  
suggesting a booster shot will be needed,  
most likely on an annual basis. 
According to DiNocco, “One thing that  
has been in the back of people’s minds is that  
this is a temporary situation, and will end. So  
they ask themselves, ‘How much effort should  
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