Many associations have common area amenities and facilities available to their residents and their guests. Such amenities and facilities may include fitness centers, pools, tennis, and other sport courts. From time to time, associations may receive a request from a resident to use a common area facility for private or group lessons with their personal instructors. While it might seem like a simple request and boards may be eager to allow such use of the common area facilities, associations should be aware of potential issues that can accompany such use. Whether a resident wishes to perfect their backstroke, backhand, or back swat, below are a few issues to consider when deliberating on whether to allow a resident to use a common area facility for private lessons with a personal instructor:
- Liability: Since the association typically operates, manages, and controls the common area facilities, it is responsible for ensuring the facilities are properly maintained and safe for use. The association could be held liable for damage or injury to an instructor or participant during a private lesson caused by missed repairs or poor maintenance of the facilities. While similar concerns may arise when a resident chooses to use the common area facilities without an instructor, boards should consult their association’s legal counsel prior to allowing common area facilities to be used for private lessons.
- Americans with Disabilities Act (“ADA”): Generally, an association’s common areas are not subject to the ADA unless they are open to the general public. Allowing non-residents to take group lessons at the association’s common area facilities may open the association to an argument that the facilities are “public accommodations” subject to the ADA. If the facilities are deemed to be subject to the ADA, an association could be required to make costly modifications to the facilities in order to comply with ADA requirements and an association could open itself to claims it violated the ADA.
- Insurance & Licensing: Consult with the association’s qualified insurance expert on the risks and insurance implications of allowing private instruction in common area facilities. Does the association have adequate coverage in the event of any incidents? Will permitting this type of use of the common area facilities be considered a commercial use and affect the association’s coverage? Also, consider requiring any instructor to provide proof of any necessary licensing or certification, adequate liability insurance coverage, and requiring the association and management be named as an additional insured on the instructor’s policies.
- Waivers/Releases: Consider requiring instructors and participants to sign agreements releasing the association, its directors, officers, management, etc. from liability arising from any injury that may occur in a common area facility during private lessons. If minors are receiving the lessons, a special waiver signed by a parent or guardian may also be necessary. Associations might also consider requiring an instructor to indemnify the association and board against any claims or lawsuits filed against them resulting from use of the common area facilities. While these types of agreements may not provide complete protection for associations in all situations, they may be better than nothing if the association allows certain private lessons.
- Register/Rules: The right to use common area facilities is generally subject to reasonable rules and regulations adopted by the board. Boards may consider adopting reasonable rules and regulations regarding private lessons at common area facilities. Such rules might include requiring the insurance coverage and waivers discussed above, prohibiting instructors from using association facilities without a resident sponsor, requiring all participants be residents of the community, requiring reservations, and clarifying that private lessons may not hinder other residents and their guests from using the facilities at any time. Adopting reasonable rules pertaining to the use of common area facilities for private lessons gives a board something to enforce in the event a resident or resident’s instructor fails to comply.
In light of the potential for liability and other serious considerations discussed above, a board may find it prudent to simply prohibit owners from using the community’s common area facilities for certain private or group lessons. However, the decision is ultimately up to the board.