The Community Associations Institute (CAI) conducted a survey this spring of nearly 1,000 members and found that three main factors contributed to closure continuations: fear of legal exposure; inability to meet federal, state, or local requirements; and concerns about spreading coronavirus. 

For New Jersey associations, the first concern might have been alleviated in some respects by the recent passage of a law that gives residential developments immunity from COVID-related liability, except in cases of “a crime, actual fraud, actual malice, gross negligence, recklessness, or willful misconduct.” As CooperatorNews New Jersey has previously reported, this law was in response to the increasing discontent and even threats of litigation that community association board members were hearing from members and other residents over boards’ decision to close or restrict amenities to prevent the spread of COVID in their communities—and the liability exposure that might follow if someone claimed to have been infected on the property. With insurance companies unwilling to indemnify directors and officers from any virus-related legal action, boards were stuck between a rock and a hard place in avoiding harm to their communities from both legal costs and viral spread. 

The second concern became less germane heading into summer, as more people got vaccinated, and more and more jurisdictions started to relax their COVID requirements accordingly. CAI reports that the Kings Grant Open Space Association in Marlton, New Jersey waited until late May to open some of their pool amenities, when the state released its updated guidance. In accordance with that guidance, they opened with caveats: reducing capacity, enacting a reservation system, enforcing mask wearing and social distancing on the pool deck, and employing a COVID attendant, among other restrictions. Since they did not have lifeguard supervision for the children’s splash pad, however, the association chose to keep that amenity closed for the summer. CAI reports that the community is fine with the compromises.

Other associations were not swayed by the new legislation or relaxed requirements. As News 12 New Jersey reports, Sands Point North—a condo complex in Monmouth Beach—received a rider to its insurance policy this spring stating that if the pool turns into a super-spreader site, or if anyone gets sick from the virus and files a lawsuit, the board won’t be covered. According to the outlet, the condo association’s three insurance providers—Philadelphia Indemnity, Commercial General Liability, and Allianz Insurance—have all changed their policies to include “Communicable Disease Exclusions.” The board’s attorney tells News 12 New Jersey that waivers of liability won’t hold up, leaving the board no choice but to keep the pool closed. 

John Seber, board president at Sands Point North, says that he and other board members feel like “[We’re] the bad guys that have to tell people that we can’t open, even though we’d love to,” and notes that the average $400 per resident amenity fee will remain in place even through the closure. “We still have to run the pool,” Seber explains. “We have to uncover it. We have to make sure the filters and the chemicals are in there, that everything is functional.” 

Such reasoning does not satisfy all condo communities. At the Millponds at Marlboro, reports nj.com, over half of the community’s 400 or so households signed a petition in May demanding that the board reopen the pool. Other associations were opening theirs, they argued, and the liability immunity bill was about to be signed into law. What other concerns could there be? Even though residents claimed that the board was “stealing summer from us,” the board remained hesitant to accept liability—legal or otherwise—for the potential ramifications of opening the pool too soon, or without the right restrictions. 

As for concern #3 - limiting the spread of the virus itself - many associations throughout the state and the country have still refrained from opening pools and other shared amenities due to fears of contagion. After the initial surge of vaccinations, the country hit a plateau by the time summer rolled around, leaving a majority of Americans who still have yet to receive a jab. Now into August, cases are soaring again in many areas, with the incredibly contagious - and possibly more virulent - Delta variant now the dominant COVID strain. The last month has shown that this variant has the potential to spread among some vaccinated people as well, forcing many municipalities that had previously relaxed restrictions to re-enforce them.

Perhaps the residents who felt that summer was being stolen from them will instead find some appreciation for their elected neighbors who made hard decisions for the sake of their community’s health and safety - both physical and financial. Some patience and relatively small sacrifices now will enable communities to look forward to enjoying their pools and other shared amenities for many years to come.