Q: I live in a homeowners association (HOA). On July 4th I celebrated with fireworks. I now have been sent a violation letter stating I violated the HOA rule against fireworks. Did I? – S.H., Estero
A: Maybe. A new law was adopted by the Florida Legislature in March. The new law provides that fireworks may be lawfully used on December 31 (New Year’s Eve), January 1 (New Year’s Day), and July 4 (Independence Day). The law does not supersede local ordinances nor a properly recorded declaration of covenants for a Chapter 720 Homeowners Association. So, an HOA can prohibit fireworks on all days including the three designated days if it is in the recorded declaration of covenants. However, the law does supersede any HOA board adopted rules prohibiting the use of fireworks on the designated days. So, as long as your local community does not prohibit fireworks and your HOA recorded covenants (as opposed to board adopted rules) do not prohibit them, you were not in violation. Note that this law does apply to Condominiums or Cooperatives regardless of recorded covenants or rules, so Condominiums and Cooperative cannot prohibit fireworks on the three designated holidays, but a local municipality may do so.
Q: Does our association liability insurance policy cover the association if someone sues claiming they contracted the COVID-19 virus from the association’s common amenities? – K.G., Naples
A: Every insurance policy is different so you would have to review your particular policy. But generally, the answer is no. The insurance carrier’s position will almost assuredly be that you are not covered for a claim from a person that alleges they contracted COVID-19 from the association’s common amenities or due to the association’s failure to keep the amenities COVID-19 free. If you review your policy you will not typically locate a specific exclusion for pandemics, contagion or communicable diseases. However, per my discussions with experienced insurance agents, I am told that the carriers will rely on the exclusions for mold, bacteria, biohazard and pollution to deny coverage. Moreover, as it was explained, the general liability policy is not health insurance and COVID-19 is a public health crisis. Whether or not the carrier’s denial is legally supportable, it is too soon to know, but there is no doubt the insurance companies will deny coverage and fight very long and hard to avoid providing coverage. So, in practical terms, most associations have operated under the premise that there is no insurance coverage for this type of claim.
However, there is an insurance product that will provide legal cost defense coverage for a COVID-19 claim. This means if your association is sued for a COVID-19 claim, the carrier will provide and pay for an attorney to defend the association. The coverage does not, however, cover any type of damage award should the association be found at fault. This is not part of your standard insurance policy and you may want to consider discussing obtaining this coverage with your agent. I understand the annual premium is actually relatively inexpensive.
Q: Can a homeowner sue the HOA for keeping an amenity closed in response to COVID-19? – S.S., Bonita Springs
A: Yes, the association can be sued by a person who claims the board did not have the authority to close or restrict access to the amenities. I know of one association client that was recently sued because the board’s COVID-19 policy stopped all renovation projects in the building. The insurance carrier for the association is providing legal cost defense coverage because the association purchased this protection as discussed above before the suit was brought. I know your question really deals with the issue of liability. While the state of emergency exists, I believe the viability of being found at fault for exercising emergency powers to close an amenity is very low. Once the state of emergency is lifted, if the association cannot document and support a very real need to keep the amenity closed, I believe the potential for liability will be increased.
Q: Can an association be sued for opening an amenity too soon? – S.S., Bonita Springs
A: Yes, and if you open the amenity and fail to follow or enforce the Center for Disease Control (CDC) guidelines and document that you have done so the potential for liability is increased. A person claiming that they contracted COVID-19 from the common amenities does not have to prove without a doubt that the disease was contracted at the pool, the clubhouse etc. The person has to allege and prove that the association did not exercise reasonable due care in imposing and enforcing precautions to prevent the likelihood of infection. This is why it so important to follow the CDC guidelines and enforce them and document your efforts.
Q: If we open the amenity and post a sign that the facility is for use at your own risk is the association protected? – J.B., Naples
A: The association’s liability is not decreased by simply posting a warning, if the association does not also impose and enforce the CDC guidelines. If you follow the guidelines and post the sign this will help reduce liability. If you post the sign only and do not follow and enforce the guidelines then the association is actually increasing its potential liability because you are basically acknowledging that there is a risk involved in using the amenity but you are doing nothing to reasonably reduce the risk.
Richard D. DeBoest II, Esq., is co-founder and shareholder of the Law firm Goede, Adamczyk, DeBoest & Cross, PLLC. Visit www.gadclaw.com, or to ask questions about your issues for future columns, kindly send your inquiry to: firstname.lastname@example.org. The information provided herein is for informational purposes only and should not be construed as legal advice. The publication of this article does not create an attorney-client relationship between the reader and Goede, Adamczyk, DeBoest & Cross, PLLC, or any of our attorneys. Readers should not act or refrain from acting based upon the information contained in this article without first contacting an attorney, if you have questions about any of the issues raised herein. The hiring of an attorney is a decision that should not be based solely on advertisements or this column.