Page 24 - New England Condominium October 2021

24 NEW ENGLAND CONDOMINIUM -OCTOBER 2021 NEWENGLANDCONDO.COM for COVID-related claims. In the New Jersey Assembly, according to community association lawyers from the Morristown office of law firm Becker & Poliakoff, there is pending legislation in the Garden State “that would, essen- tially, offer community associations im- munity from legal action regarding any illness, injury, or death from or related to exposure to or transmission of COV- ID-19 on the premises of a planned real estate development.” This bill, supported by CAI New Jer- sey’s Legislative Action Committee, arose from the actions—not all of them popu- lar—that boards and property managers had to take to mitigate the spread of coro- navirus on their properties and through their communities. Closure of amenities, mandatory masking and social-distanc- ing rules, suspension of community activ- ities, and strict policies related to elevator capacity, outside guests, and renovations were some of the measures instituted to slow or stop the viral spread in housing communities. But these actions were met with resistance from residents in some cases, and even the threat of litigation. Equally concerned about being sued if they did not enact such measures and a resident became infected on the property, boards and managers found themselves in very tricky legal waters. So far, as New England Condominium has previously reported, insurers are not covering for claims related to COVID, so even with Directors & Officers (D&O) insurance, boards and board members could potentially be held financially re- sponsible in the event that a resident, visitor, or staff member succeeds in an action against them claiming negligence or breach of fiduciary duty. They would be responsible for their own legal defense as well. “There are always liability concerns,” says Scott Piekarsky, an attorney with Phillips Nizer, a law firm with offices in Manhattan and New Jersey. “People may get injured due to the pandemic through infection. … A condominium association is a business, and boards have a fiducia- ry 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.” To take that specific pressure off boards and board members, the New Jer- sey Assembly passed the COVID Immu- nity Bill (A4979/S3584) in July of 2021, alleviating these concerns (and perhaps encouraging boards to reopen amenities sooner). Florida condo and HOA leaders might have less to worry about in this regard now, says Donna DiMaggio Berger, Board Certified Specialist in condominium and planned development law and share- holder at Becker’s Fort Lauderdale office. According to her, SB72, which Governor Ron DeSantis signed into law on March 29, “\\\\\\\[Provides\\\\\\\] civil immunity to business entities, not-for-profit corporations, hos- pitals, nursing homes, government enti- ties, schools, and churches for COVID-19 related claims as long as the alleged negli- gence doesn’t involve gross negligence or intentional misconduct.” Florida condominiums, cooperatives, and homeowners’ associations are classi- fied as business entities that this bill pro- tects. “However,” continues Berger, “the new law is not a protective blanket under which all associations can take shelter re- gardless of how they handled this crisis. … The association boards who took steps (and continue to take steps) to comply with local, state, and federal guidelines should be able to rely upon this new law for protection.” Berger stresses that the law does not provide or imply license for community leaders to completely abandon health and safety protocols in attempts to get back to “normal,” especially as substantial num- bers of Floridians remain unvaccinated and viral variants continue to spread. “It is not only reasonable, but prudent for boards to continue to exercise due cau- tion when operating and opening com- mon amenities and enforcing COVID-19 safety protocols,” she concludes. Planning for the Next Disaster Although not necessarily a direct response to the pandemic, Rep. Jerry Nadler (D-NY) and nine of his colleagues introduced federal legislation in Septem- ber to correct the disparity in FEMA di- saster assistance available to single-family homeowners versus what’s available to condos, HOAs, and co-ops. The Disas- ter Assistance Equity Act (DAEA), as the legislation is called, would streamline the approval process for the Federal Emer- gency Management Agency (FEMA) to reimburse local governments for the cost of removing debris from community as- sociation roads, and would allow con- dominiums and housing cooperatives to use FEMA disaster assistance payments to fund critical repairs for common ele- ments. One thing this year has taught us is the importance of acting quickly, intentional- ly, and informedly when a disaster threat- ens the health and safety of our homes and our neighbors. Helping community associations plan for disasters and im- proving recovery coordination with local emergency management officials will go a long way toward resilience, restoration, and recovery in the face of ever increasing threats from natural and biological disas- ters. n Darcey Gerstein is Associate Editor and Staff Writer for New England Condominium. COVID... continued from page 23 WE ARE YOUR LOCAL BOSTON EXPERTS! We handle leaks, clogs, heating and air conditioning issues, ductless AC installations, and we love handling upgrades that save you money and headaches. The fact is, we handle just about anything related to water, heating or cooling. Keeping humans comfy is our business, and we’re ready to put our knowledge to work for you. (617) 288-2911 41 Hollingsworth St., Mattapan, MA 02126 scheduling@bostonstandardplumbing.com See us at Booth 341 See us at Booth 130