Pool Closure/Ownership - Board Authority

"...but for me it's the difference between residents using our small pool which would have a very small occupancy and is restricted to my immediate neighbors or one of the other numerous public pools/waterparks where there would be a huge number of people from all different areas and then coming home and using the same essential services that individuals who wouldn't go to ANY pool are still using."

You say you don't want to open a debate but you opened the door with your statement above. Some HOA's have kept the pool closed because they cannot follow CDC and DHEC guidelines without hiring a full time attendant to do what's needed because they don't have the money. There is a legal liability question as well. Our insurance doesn't cover virus related law suites. Whether the resident won or not doesn't matter. What matters is we could potential be bleeding money defending the law suit. These are strange times and the lawyer we spoke with said that for the reasons I just went over that we could close the pool if we wanted to and we could justify it in court. Ultimately, we did open the pool. I wanted to keep it closed but respect the vote of the full board.

Sorry, I see that. I've heard some very strange ideas from my neighbors when discussing the pool opening and I was trying to assure that I did not think there was no merit to keeping the pool closed.

What are the compelling reasons your board decided to not open the pool? Have they been transparent? Reach out to the board and or the property manager for clarification.

The HOA I live in decided to not open the pool. As JohnT stated, there is no insurance coverage for viral diseases. If someone says they got sick and it is from your pool, the money to pay legal fees comes out of your HOA assessments operating budget. Even if an investigation determines that the person did not get CV from your pool, that is money your HOA cannot afford to lose.

Experts and consultants to Health Boards, State, Local inspectors drafted guidelines for apartment and hoa pools to reopen. Some, like apartment pools have the staff and capital funds on hand to clean the pool and hire more lifeguards to enforce social distancing. Many HOA's do not have that luxury of on hand capital.

Since our pool is not monitored and after reviewing the guidelines to reopen, we found the guidelines to be very cost prohibitive, and decided to not open the pool.
The guidelines provided to us are, regular cleaning of the pool, deck, surfaces and bathrooms.. We asked them to define "regular" and they said daily on the pool cleaning, deck and surfaces, hourly on the bathrooms. Even if we reduced the hours the pool was open, the cleaning cost are cost prohibitive, not to mention the pool cleaner is a third party vendor that has other clients. they do not have the staff to keep someone on property due to high demand.

I hope this helps.

I would be interested to know what our resident lawyers have to say about this. Our lawyer said that this situation is so unique that you might as well throw out whatever your governing documents say about pools or other HOA facilities. (I'm exaggerating how he said it.) His point was if you cannot afford to sanitize the facilities then you had the right to close them and he was confident you could defend yourself in court. He also mentioned if facilities were open and residents didn't follow the guidelines you could then close them no matter what you docs say. In his opinion you could argue that your actions were merited based on your fiduciary responsibility to protect the HOA from devastating law suites that could occur and because of the uniqueness of the situation you would not be held accountable solely on what your docs say.

Ugh, of course I meant "if you answered no to the first two yes to the third"...wish we had an edit button. But you get the point.

Let - I checked the governing documents specifically for the phrase discretion and there wasn't anything that'd be relevant (references to the declarant, committees, fines, etc.) I did find the language about operating that I included in the original post.

Regarding reasons: Yes and no, last time there was an open meeting everything was *just* opening up. The primary reason they've given is potential for litigation and cost of compliance. The primary reason imo is personal liability. From their comments it's clear they may not understand the differences between indemnification and insurance exclusion. My thought process is, if they don't have the authority to keep it closed, they aren't the ones responsible for a suit. While that won't stop them from being named, our bylaws grant indemnification by the board or if they are conflicted, the membership. I want to give them information they can consider and discuss with the attorney.

Obviously this doesn't address the potential for litigation against the association, but that's a whole other argument. I think if they had assurance of indemnification and that they were acting in accordance with the authority of the declaration and a majority voted that the pool should be open despite the litigation risk to the HOA, the pool would be open.

What's also important is that they had this discussion when pools opened at 25% and the health department had issued guidance for re-opening pools which has since been significantly pared down and split between pools and waterparks, to the point of the guidance being for individuals and not the operator (https://dshs.texas.gov/poolspa/pdf/OpenTexas-Checklist-Parks-Beaches-Bodies-of-WaterPhase_3.pdf). Waterparks do still have the requirements (https://dshs.texas.gov/poolspa/pdf/OpenTexas-Checklist-Waterpark-OperatorsPhase3.pdf).

They haven't had a meeting since (at least an open one) to discuss it and get homeowner input, but from what we've been told the cost of operating is no longer the issue.

John - I definitely agree that the pool could/should be shut down if compliance was not possible, I think that falls under "reasonable" per our governing docs. I don't think total closure is "reasonable" without attempt.

Regarding fiduciary duty, we're not looking at it from the same point of view. The difference between "can we justify shutting it down if someone sues us" vs "can we justify not shutting it down if someone sues us". Couldn't the board of directors argue that they did not prevent access to the pool because members had the right to access it and reasonable measures were taken as recommended by the CDC and health department, and the membership voted to adopt these rules with knowledge of the potential for litigation and other risks?

Barbara - yes, yes, probably, but that's a reasonable operation and none of these are the same as total denial of access. What would be more similar to a total denial of access is encumbrance or sale, which requires a vote of the membership.

In your example, we expect the pool to be closed to clean it if someone poops in it, or perhaps closed if people won't stop pooping in it, or pooping in it so bad it CAN'T be cleaned, not to be closed because someone *might* poop in it and we'll get sued by people who KNEW people were pooping in it.

Our pool is open, btw, and there were owners who threatened to sue because it has opened with reduced hours. And the board's POV was...okay, if they want to set their money on fire, I guess we can't stop them. The HOA's insurance will cover that defense, and by the time it made it to court (since many courts have also closed or have reduced service because of COVID) it will be moot.

What damages will owners have suffered by not being able to use the pool for one summer?

I remain aghast at the entitlement of people. It's one summer, not the rest of their lives.

Again, I guess I should have been clearer that I am not asking because I was going to sue the board of directors. If that was the case, I'd probably just ask my attorney. I am asking about the ownership of the pool and the board's authority to close it. I think the board does not have the authority to prohibit members from accessing the pool.

This is important to both sides - but not just the homeowners that want it open. Obviously if the board doesn't have the authority to prohibit access then they can't be sued for not prohibiting access (that still leaves the door open to being sued over failure to comply with regulations in the operation of the pool but that's another topic.) If the membership has the authority and votes to have it open, it's the association that's liable, not the board. I think if the board clearly evidenced that they made the membership aware of the risk and the membership voted to accept the risk, that would be a good defense for the board that 1) they did not have the authority to prohibit access and 2) they acted within their fiduciary duty because the membership knew and accepted the risk.

"I think the board does not have the authority to prohibit members from accessing the pool. "

Interesting position Judy, but I don't think I agree.

I believe the Board does have the authority to limit access to the pool - isn't this why there are Boards in the first place? The first level of democratic process on behalf of he constituency? If the constituents don't like the decisions, they can replace their representatives - the Board?

In this pandemic, one can argue for both positions here (open the pool; close the pool). Unless your HOA's members take this to court, they will never know what "The Law" says on the issue.

I agree with JohnT38's HOA's attorney.

Texas has a roughly 16% positive test rate as of yesterday. Arizona's is in excess of 20%. Hospital maximum capacity in Texas and Arizona is likely to be achieved. This means the chances are good that very ill patients will be turned away at some point soon, and their chances of death then rise significantly. JudyW6, I realize you did not want to get into this. I am posting for others. The situation is dire. Listen to Fauci. Read about what it is like to be ill with COVID-19 to the point where you are struggling to breathe. Those who have "recovered" often show massive after-effects that evidently may last the rest of their lives.

> Does the board really have the right to prohibit access to the pool to all members?

The locality says OK to open at the discretion of the owner at 50% capacity.

The board has the right to make reasonable rules and regulations.

The board is the owner for purposes of pool rules.

Seems to me the board can set capacity anywhere between 0% and 50%.

Since a possible (remotely likely) consequence of contracting the virus at the poole is death...more stringent rules than the locality might make sense, depending of the risk tolerance of the association (as represented by the board).

It's clear to me that the Texas governor has a pretty high level of risk tolerance, at least for risks run by other people.

There is probably something in your governing documents giving the board broad control over common areas. Ours (according to our attorney) comes from our Articles of Incorporation where it states that the association's purpose is to "manage, operate ... the common elements." It's unreasonable to think that owner's have the right to use the amenities at all times no matter what and I can't imagine any court ruling that an HOA board cannot restrict use of amenities if they have cause.

I don't think the clause, "get member approval to encumber, abandon, or transfer ownership of the common property" would apply for a temporary closure.