When the water in the pool is icy cold, the standard advice is to hold your breath, close your eyes, and dive in. That is not how condominium association boards should approach the reopening of pools and other amenities closed during the pandemic, however. Sticking your toe in the water and adjusting gradually to the temperature is a much better idea.
Boards will face competing pressures—from owners who will be demanding access to closed amenities as state and local governments ease their lockdowns, as well as from owners who are aware that the virus will not disappear when lockdowns end, and who support continued efforts to reduce infection risks in the community.
There are potential liability risks on both sides. Owners who favor reopening may claim that the board is unfairly denying them the use of facilities for which they are paying, and may demand refunds of a portion of their common area fees; owners who contract the virus may claim the board was negligent in reopening the amenities.
We think the board’s defense would be equally strong against both suits. Insofar as owners demanding reopening are concerned, a board is not required to do what owners demand; it is required to use its best judgment to make decisions in the interests of the community and its residents. As for the potential demands for refunded fees, it still costs money to maintain the amenities, and if something cannot be used safely, it is within the board’s discretion to suspend the use. Therefore, owners denied access to closed amenities would be no more entitled to a refund than owners who chose voluntarily not to use them.
When it comes to owners who claim they contracted the virus from using amenities the board negligently failed to maintain, there are two arguments here. Firstly, it will be difficult at best for owners who contract the virus to identify with certainty where their exposure occurred. Secondly, the board is not required to guarantee that common areas are virus-free; it is only required to implement reasonable policies that reduce the contagion risks.