Please be advised that all San Diego County businesses remaining in operation must post this form at all business entrances by 12:00 a.m. on April 7th.
This includes onsite community associations if there are onsite employees working for the association or employees of vendors in the building.
Keywords: COVID-19, Coronavirus
By Susan M. Hawks McClintic, Esq.
We are all being forced to address issues and make decisions that even a month ago, we did not imagine. Boards of directors and managers are put in the position of responding to Federal, state and local government orders that impact their communities while trying to make decisions for the overall well-being of the residents of their communities.
In responding to these government orders and the COVID-19 pandemic, does the board need to adopt rules to address changes in common area use, conduct of meetings and other related issues? We believe the answer depends on whether the board is responding to mandatory government orders or taking discretionary actions.
Since the shelter-in-place order from Governor Newsom went into effect on Thursday, March 19, 2020 and the various orders from counties and cities have been issued, some California community associations have either elected or been ordered to close some or all of their common area amenities during this pandemic.
If your county has ordered your community association to close some or even all of your association’s common area amenities, then we do not believe that your community association is required to adopt emergency rules to comply with these closures because they are required by law and the board has no discretion regarding those closures. (Civil Code section 4355(b)(4)). Note that if the board wants to adopt rules to address the closures, the board can do so under Civil Code section 4360(d) without following the usual process of notifying the owners of the proposed rules and allowing a comment period.
If your community association has taken a proactive approach and closed common area facilities that are not required to be closed under a government order or made other changes in use of the common area in an attempt to protect the health and well-being of the community’s residents, then we recommend adopting an emergency rule regarding those discretionary common area closures or changes in use. This same approach should be applied to any other discretionary emergency rules your board makes in response to this COVID-19 pandemic.
Civil Code section 4360(d) of the Davis Stirling Common Interest Development Act allows community associations to adopt emergency rules without first receiving member comments if “an immediate rule change is required to address an imminent threat to public health or safety or an imminent risk of substantial economic loss to the association.” The caveat is that an emergency rule is only effective for 120 days (unless the rule provides for a shorter period) AND the emergency rule cannot be readopted under the same procedure.
If your community association is contemplating adopting such a discretionary emergency rule, then the board should meet (via emergency meeting procedures, if necessary) to determine whether the proposed rule must be adopted to address an imminent threat to public health and safety. If the answer is “yes”, then the rule must be drafted and the community notified of the new emergency rule. If the board anticipates that the emergency rule must be effective for longer than 120 days, then during that 120-day period, the association should readopt the emergency rule using the rule-making procedures outlined in Civil Code section 4360(a)-(c). (See below.)
Civil Code §4360. Rule-Making Procedures
(a) The board shall provide general notice pursuant to Section 4045 of a proposed rule change at least 28 days before making the rule change. The notice shall include the text of the proposed rule change and a description of the purpose and effect of the proposed rule change. Notice is not required under this subdivision if the board determines that an immediate rule change is necessary to address an imminent threat to public health or safety or imminent risk of substantial economic loss to the association.
(b) A decision on a proposed rule change shall be made at a board meeting, after consideration of any comments made by association members.
(c) As soon as possible after making a rule change, but not more than 15 days after making the rule change, the board shall deliver general notice pursuant to Section 4045 of the rule change. If the rule change was an emergency rule change made under subdivision (d), the notice shall include the text of the rule change, a description of the purpose and effect of the rule change, and the date that the rule change expires.
(d) If the board determines that an immediate rule change is required to address an imminent threat to public health or safety, or an imminent risk of substantial economic loss to the association, it may make an emergency rule change, and no notice is required, as specified in subdivision (a). An emergency rule change is effective for 120 days, unless the rule change provides for a shorter effective period. A rule change made under this subdivision may not be readopted under this subdivision.
Keywords: COVID-19, Coronavirus
With the Coronavirus (COVID-19) sweeping the world, community associations could face claims by members and guests who become infected by alleging that the association failed to exercise reasonable care in guarding against, or warning of, the risk of exposure to the COVID-19 virus.
This claim would be based on the fact that community associations that manage common interest developments have a duty to exercise due care for the safety of residents and guests in those areas under their control. (Frances T. v. Village Green Owners Ass’n. (1986) 42 Cal.3d 490.)
Claims against an association by persons claiming to have been infected by the COVID-19 virus due to the failure of the association to prevent exposure, should immediately be tendered to the association’s insurance company or companies under both the general liability insurance policy (“GL”) and the directors & officers insurance policy (“D&O”). It is advisable to consult your insurance broker or agent concerning the proper way to submit a claim to the various carriers. Not filing a claim properly could have dire consequences.
Unfortunately, most GL and D&O policies contain exclusions for claims of bodily injury caused by or resulting from virus or bacteria. And most D&O policies contain exclusions for all claims of bodily injury. The Board should review the association’s insurance policies with the association’s insurance broker/agent to see what level of coverage is contained in the association’s specific policies. Even if the association’s policies contain these exclusions, the insurance company may have a duty to provide a defense for the association against any lawsuit filed, while reserving the right to not pay any uncovered claims.
An association may be subject to claims for exposure to COVID-19 virus by its own employees. In that case, the employee may be entitled to worker’s compensation benefits for “occupational diseases,” but “ordinary diseases of life” (diseases to which the general public is equally exposed) are generally excluded from workers compensation insurance policies. To the extent that employee claims for COVID-19 virus illness do not qualify for workers compensation benefits, the association may still have coverage under its GL policy. You may wish to check with the association’s broker or agent to determine the level of workers compensation coverage for these exposures.
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While this brief article has reviewed the various types of insurance that may afford coverage for claims associated with exposure to the COVID-19 virus and other infectious diseases, the limits of coverage will always depend upon the specific language in the association’s insurance policies. We recommend that board of directors take a proactive stance to manage the association’s exposure for COVID-19 virus claims by working with the association’s insurance broker or agent to review the level of coverage provided by all of the association’s insurance policies.
Our attorneys are available during these troubled times to assist our clients with answers to any specific questions they may have concerning risk management and insurance coverage issues.
For more information on how to submit insurance claims, please read this article.
Keywords: COVID-19, Coronavirus
Do not panic.
It is important to remember how COVID-19 may be transmitted. According to the CDC, the virus is believed to spread mainly between individuals who are in close contact with each other (within approximately 6 feet) through respiratory droplets produced when an infected individual sneezes or coughs.
According to the CDC, current evidence also suggests the virus may remain viable for hours to days on a variety of surfaces. If a resident in your community has tested positive for COVID-19 it is more important than ever to clean AND disinfect high-touch surfaces in the common area and continue to do so on a regular basis. Information from the CDC regarding the difference between cleaning and disinfection as well as best practices can be found here.
It is our recommendation when a community association learns it has a resident who has tested positive for COVID-19, it should contact its local County Public Health Department directly before making any decision to notify all residents of any confirmed or suspected COVID-19 case in the community. The County Public Health Department may advise the community association as to whether notification to the entire community is recommended or not. As you can image, there are a number of considerations when determining whether to notify the entire community of such information and we strongly recommend the Board seek the advice and direction of its county health officials to assist in making that determination. Various factors may influence what guidance is given (e.g., notifying the residents in a high rise building with shared essential facilities versus notifying residents in a planned development community with detached single-family residences).
If a resident tests positive for COVID-19, your community association may or may not be notified directly by your county’s public health department if a resident tests positive for the virus. The general process (at least for San Diego and Riverside Counties) when someone tests positive for the virus (“patient”) is as follows: The patient’s health care professional is required to notify the county’s public health department. Once the county is notified, the public health department assigns a contact tracker. The contact tracker investigates who the patient was in contact with and notifies the individuals the contact tracker believes may have been exposed to the virus. During the contact tracker’s investigation they may contact a community association to get additional information. For example, if the patient is a member of an association club, did the patient attend a recent club meeting? If yes, who are the other members of that club? The county may ask the association to notify the residents of the community. The notification should be (1) general in nature, (2) not identify the individual who tested positive for the virus for HIPAA reasons, (3) recommend that if residents have any questions regarding their possible exposure that they should contact their health care professional, and (4) be written in a way as to not incite panic or fear. If the county does not ask that the association notify the community, then the board of directors should consider whether notifying the community is in the best interests of community as a whole. The decision may be different in a high rise building than in a planned development community comprised of detached single family residences.
If for whatever reason, your community association has not yet closed non-essential common area facilities, those areas should be closed immediately. Please be aware that some counties and cities have already ordered the closure of such facilities as private shared community pools, clubhouses, and gyms.
This is our firm’s current opinion based on the information available to us today. This is a rapidly changing and evolving situation. Before taking any action please make sure you contact your community association’s legal counsel.
Keywords: COVID-19, Coronavirus
As unsympathetic as it may sound, community associations should not automatically waive assessments or late charges for their members, even during this unprecedented time. Nor should community associations defer their usual collection efforts.
Remember that the Civil Code and your governing documents place a duty on the board to levy assessments and those assessments are the lifeblood of association operations. For community associations with exceptionally high delinquencies as it is, waiving assessments, or even late charges, or deferring collection efforts may compound the problem or create another one instead of helping your membership.
However, If the inability of members to pay assessments in a timely manner during this pandemic is a concern for your community, the issue should be discussed amongst your board members issue to determine what is in the best interests of the association. The board should consider any requests for payment plans or requests for deferral in paying assessments that it receives based on the individual circumstances, while being consistent in the decisions it makes. Ultimately, the board must act in the best interest of the membership as a whole, so boards should proceed with caution before making blanket decisions, especially considering the economic implications of this pandemic are not clear at this moment in time.
If the board does decide to waive late charges or defer payment of assessments for all members, be careful how to convey the message to your members. Be sure any such deferral is for a specified reasonable period of time, March to May, for example. We would be glad to review any draft messages you propose to send to the members before they are sent to the members.
Remember, there may be other kinds of things that association members can do to help those members who are in need during this time.
While we applaud thoughtful, community-oriented actions at this time, we also encourage associations to consider their duties under the governing documents in addition to the continued operation of the association and maintenance of the common areas.
Keywords: COVID-19, Coronavirus
On March 24, 2020, the Riverside County Department of Public Health issued an update to its prior “COVID-19: Frequently Asked Questions Concerning State and Local Orders” (“Q & A”).
The Q & A can be found here.
Among other things, the Q & A answers a lot of questions that community associations located in Riverside County may be asking while the State’s Executive Order (the Governor’s shelter-in-place order) and the County’s orders and directives remain in place.
Here is a list of some of the answers provided in the Q & A that may affect your community association:
We anticipate that this Q & A will be updated as the governments’ orders change. We will do our best to provide you additional updates as we become aware of them. Additionally, the city where your community association is located may impose additional orders and directives.
Our clients may contact us if they have any questions about the County’s Q & A or any other community association legal issue.
We are here for you. Please stay healthy.
