Get 1 year of free community web site hosting from Community123.com!
Thursday, May 13, 2021











HOATalk is a free service of Community123.com:

Easy to use website tools to help your board
Only members have access to all features.
Click here to join HOATalk for Free! Members click here to login and access all features.
Subject: Fiduciary Duty to not open community pool
Prev Next
Please login to post a reply (click Member Login on the menu).
Author Messages
HenryD3
(Florida)

Posts:20


05/01/2020 5:05 PM  
Hello,
In a HOA in Florida. Some of the board feel it is there "Fiduciary Duty" to not open the community pool, for fear the community could be sued if someone would become infected with COVID19 from someone else using the pool.
Others are pushing that the board is not responsible for medical infection prevention.
The community attorney is advising to maintain the lockdown on the side of caution.
TimB4
(Virginia)

Posts:17599


05/01/2020 5:07 PM  
No question was asked.

In my opinion, you received a legal opinion.
Follow it.
HenryD3
(Florida)

Posts:20


05/01/2020 5:21 PM  
Tim,
Would "Fiduciary Duty" cover medical risk? Normally I have seen this referred to dealing with financial and a burden of proof based on ill-gotten gain.
JohnT38
(South Carolina)

Posts:569


05/01/2020 5:22 PM  
Posted By HenryD3 on 05/01/2020 5:05 PM
Hello,
In a HOA in Florida. Some of the board feel it is there "Fiduciary Duty" to not open the community pool, for fear the community could be sued if someone would become infected with COVID19 from someone else using the pool.
Others are pushing that the board is not responsible for medical infection prevention.
The community attorney is advising to maintain the lockdown on the side of caution.




Your choice is listen to 'others' or listen to your lawyer. Seems like a no-brainer.
AugustinD


Posts:0


05/01/2020 5:35 PM  
If your HOA opens the pool, then I think the board has a fiduciary duty to have the area cleaned by COVID-19 trained professionals once a day. Just as many corporations and municipalities are doing with their work areas and other facilities.

If on the board of a HOA with a pool, I would vote to keep the pool shut down as a matter of local, state and national emergency. If members did not like my vote, they are welcome to recall me.
KerryL1
(California)

Posts:8015


05/01/2020 5:44 PM  
On advice of your attorney, keep it closed. You need to do what's is in the best interests of your Association as a whole, and advice from experts, e.g., your HOA attorney, shouldn't be ignored.

A little off topic, but doesn't your HOA have a rule that those who are subject to involuntary bodily functions must wear effective diaper protection in the pools? If so, isn't that "infection prevention?"
BenA2
(Texas)

Posts:872


05/01/2020 8:55 PM  
Fiduciary duty simply means to act in the best interest of those you represent. I think the question of whether they are responsible for preventing infections is overthinking it. Public health is not generally the board's responsibility but if a board member believes keeping the pool closed, for any reason, is in the best interest of the association, they have a duty to vote to keep it closed.

PaulJ6


Posts:0


05/02/2020 3:50 AM  
Posted By HenryD3 on 05/01/2020 5:05 PM
Hello,
In a HOA in Florida. Some of the board feel it is there "Fiduciary Duty" to not open the community pool, for fear the community could be sued if someone would become infected with COVID19 from someone else using the pool.
Others are pushing that the board is not responsible for medical infection prevention.
The community attorney is advising to maintain the lockdown on the side of caution.




I am a lawyer and don’t see how this is a fiduciary duty issue. It is a liability issue though. Follow the lawyer.
GenoS
(Florida)

Posts:4276


05/02/2020 4:34 PM  
I agree with Ben and Paul. It's not a question of fiduciary duty; those questions almost always revolve around financial wrongdoing.

Local governments and the state Dept. of Health never ordered the shutdown of swimming pools in HOAs. If such guidance had been given, then I would be actively opposed to our HOA board here. They have steadfastly refused to close the pool. As a matter of fact, the question was never even considered (and we've only had one board meeting since February). There has been minimal effort made to clean or disinfect the clubhouse or the pool deck since February. The Vice President says she did clean the clubhouse and the clubhouse restrooms a couple of weeks ago.

Even though I disagree with their inaction, they haven't violated any guidelines and I don't believe they have violated any fiduciary duty. If called on the carpet, they'd ask to see the exact wording of whatever it is they're supposed to have violated. Such a thing doesn't exist and some nicey-nice words about keeping the amenities open for the benefit of the residents during a difficult time yada yada yada would shield them if they, in good faith, believed they were doing the right thing (regardless of whether or not they were).
GeorgeS21
(Florida)

Posts:3800


05/02/2020 5:39 PM  
Geno,

I believe your board certainly violated common sense during a pandemic ... and, I’m assuming aggressive legal counsel would be able to make a liability case sing.

Clearly not my HOA, but I would resign from any Board that refused to close their facilities during this pandemic.
HenryD3
(Florida)

Posts:20


04/11/2021 2:32 PM  
Geno,
It's been over a year and although the pool has been opened to the homeowners, there is still a limit on the number of homeowners can use the pool at the same time. The clubhouse, gym, billiards, and library are still closed.
The community has petitioned the HOA Board to allow guests/visitors to the pool, as most of the homeowners have had family, friends, grandchildren come to their home. Below is the notice made last fall and repeated in March 2021.

"Our current policy, which has been revisited at every monthly Board meeting and in place since June of 2020, is that the clubhouse is closed and the pool is open for use by residents only (no visitors or guests).

In keeping with: 1) current CDC Guidance for Public Pools, which was shared with the community yesterday and which states “Limit any nonessential visitors…”, 2) the advice of our legal counsel, 3) and the commitment to our fiduciary responsibilities during this pandemic, the current policy will remain in force for the foreseeable future; the clubhouse will remain closed and the pool will remain open for use by residents only (no visitors or guests). It is the Board’s plan to follow CDC guidelines and remove use restrictions when the country achieves herd immunity."

The recent Florida legislation SB 72 that protects corporations from Covid liability has been brought to the Board's attention but they are still holding on to the need for "herd immunity".

Henry
JohnC46
(South Carolina)

Posts:10944


04/11/2021 2:51 PM  
Henry

I say the BD was "careless" in leaving the pool open to anyone during this Covid 19 crisis and it is not over yet.
SheliaH
(Indiana)

Posts:3921


04/11/2021 3:28 PM  
What John said. The residents may squawk, but if they've been watching the news, they may have noticed the numbers have started to creep up. Hasn't Florida learned yet from the last time they opened up everything prematurely?

There may be something addressing COVID liability now, but unless homeowners are willing to pay extra for monitors to keep track of everyone and have users (everyone) sign a waiver, memo or understanding or whatever, I say keep the pool limited to residents only. If people would be patient, they may be in a better position to open things up wider in a month or two.
KerryL1
(California)

Posts:8015


04/11/2021 4:33 PM  
Our county has moved into amore permissive tier in CA and we were able to reopen our gym & billiards room recently. Our Lounges & the pool have been open for quite some time.

We do NOT permit guests in these areas as we limit numbers in all of them. Guests could keep out residents.
CathyA3
(Ohio)

Posts:1881


04/12/2021 5:29 AM  
Related to another recent thread: if the board wants to keep the pool open, at the very least they should require a signed waiver of liability from anyone who wants access to the pool (and the clubhouse or other amenities). These waivers are very common: anyone who owns facilities in which people can be hurt through normal use of said facilities requires such waivers. HOAs should be doing this anyway, but covid makes it more important.
HenryD3
(Florida)

Posts:20


04/26/2021 8:32 PM  
The Board recently voted to open the pool to owners bringing guests/visitors to the pool and to open the community clubhouse (library, meeting space). But announced the opening will be in effect on May 1st.
Please login to post a reply (click Member Login on the menu).
Forums > Homeowner Association > HOA Discussions > Fiduciary Duty to not open community pool



Only members have access to all features.
Click here to join HOATalk for Free! Members click here to login and access all features.







General Legal Notice:  The content of forum messages are from the posting member and have not been reviewed nor endorsed by HOATalk.com.  Messages posted by HOATalk or other members are for informational purposes only, are not legal or professional advice and do not constitute an attorney-client relationship.  Readers should not act upon this information without seeking professional counsel.  HOATalk is not a licensed attorney, CPA, tax advisor, financial advisor or any other licensed professional.  HOATalk accepts ads from sponsors but does not verify sponsor qualifications nor endorse/guarantee any sponsor's product or service.
Legal Notice For Messages Posted by Sponsoring Attorneys: This message has been prepared by the sponsoring attorney for informational purposes only and does not constitute legal advice. This information is not intended to create, and receipt of it does not constitute an attorney-client relationship. Readers of HOATalk.com should not act on this information without seeking professional counsel. Please do not send any sponsoring attorney confidential information unless you speak with the sponsoring attorney or an attorney from the sponsoring attorney’s firm and get authorization to send that information to them. If you wish to initiate possible representation, please contact an attorney in the firm of the sponsoring attorney. Sponsoring attorneys that post messages here are licensed to practice law in a specific state or states as indicated in their message signature or sponsor’s profile page. (NOTE: A ‘sponsoring attorney’ is an attorney that is a HOATalk.com official sponsor and is identified as such in the posted message or on our sponsor page.)

Copyright HOA Talk.com, A Service of Community123 LLC ( Homeowners Association Discussions )   Terms Of Use  Privacy Statement