Under the various stay-at-home executive orders issued by Governor Whitmer, common amenities such as swimming pools, clubhouses and exercise facilities are to remain closed – even those located within "private" community associations. Currently, these restrictions are to remain in place until at least May 28, 2020. But what happens when these restrictions are lifted? Even if these restrictions end abruptly, the health concerns associated with COVID-19 won't simply disappear overnight. Moreover, Michigan's unofficial summer season – which runs from Memorial Day through Labor Day – starts on May 25, making this summer even shorter than usual. This means that community associations will have to answer the difficult question of whether the benefits of having limited use of their common amenities is worth the expense.
First and foremost, community associations will need to adhere to any governmental limitations on the use of common amenities. These issues could be subject to a variety of rules and regulations beyond Governor Whitmer's executive orders. For example, most counties require public and quasi-public swimming pools to be inspected and approved before being allowed to open. Oakland County has already made the decision not to open its public water parks this summer, in recognition of the practical concerns over trying to control the spread of the COVID-19 virus through increased cleaning measures and the enforcement of social distancing rules.
It remains to be seen whether any required inspections and approvals with respect to common amenities will take place this summer; but obviously, to the extent any such restrictions are imposed, they will need to be adhered to by community associations.
Assuming, however, that no such restrictions are applicable, there are still practical health concerns that will likely increase the costs associated with opening and operating these amenities. These problems have never been presented before, so many important questions remain unanswered. For instance, do associations have any liability if the COVID-19 virus is spread as a result of contact with others using these amenities? Can associations avoid or limit these risks by adopting more stringent rules, using increased cleaning efforts, or requiring that people using these facilities execute waivers? Are COVID-19 claims covered under the association's insurance policy?
The lack of clarity on these issues means that any decision to open these amenities will likely be coupled with increased requirements and restrictions for their use, which may include such things as:
These measures will no doubt significantly increase the costs associated with opening and operating these amenities, with no guarantee that they will work or that they will eliminate the risks faced by community associations. Those risks are exacerbated in the absence of insurance coverage under the association's liability policy. When you consider the fact that many of these amenities are primarily intended for use during Michigan's relatively short summer season, it may be more fiscally responsible for associations to keep these facilities closed, thereby allowing these funds to be used to address other pressing needs and potential budget shortfalls associated with a looming economic crisis.
The flip side to this debate is the fact that many residents both want and expect to be able to use these facilities. Indeed, the availability of these amenities is often an important consideration when deciding whether to purchase or rent a home in the community, not to mention their effect on the market value of these homes. In addition, these amenities are often a significant line item in an association's annual budget. Any decision to restrict or eliminate the use of these amenities will no doubt be opposed by some residents.
This begs the question: are community associations required to open and operate these facilities? The answer to this question is also unclear; although under these new and unique circumstances, the courts are more likely to uphold an association's decision to limit or eliminate the ability to use these facilities as long as the restrictions are "reasonable." Of course, whether an association's decision is "reasonable" must be determined on a case-by-case basis, which once again makes it extremely difficult to predict with certainty how this question will ultimately be answered.
In the end, practical and fiscal considerations may be the deciding factor on whether to open these facilities this year. Indeed, even though the short summer plays a vital role for many Michigan industries, the government is facing these same difficult questions, only on a much larger scale. Unfortunately, it is unlikely that we'll receive clear guidance before a significant portion of the season has already passed us by.
One thing appears to be certain: it will cost more for community associations to open and operate these common amenities this year, and the season for using them will be shorter. As with most issues facing community associations, communication will be critical. No matter how these issues are addressed, some will oppose these decisions. While clear and frequent communication may not change the opinions of those who use these facilities, it usually leads to a better understanding of the difficult decisions that boards of directors of community associations must make. In most instances, more information makes it more likely that residents will accept these newly adopted restrictions.