M&G Co-Founder, Ben Gottlieb, provides thoughts on HOA Community Facilities Use During Pandemic
Question: Governor Ducey signed Executive Order 2020-36 – Stay Healthy, Return Smarter, Return Stronger – into law on May 12, 2020. Despite this fact, our HOA Board still will not open up our amenities – including our playground and pool. Do we have any legal rights? We still pay our dues every month and want to have the option to use the HOA amenities.
Answer: The answer to this question turns on the authority bestowed upon a particular HOA Board. HOA Boards must derive their authority from some source of law – whether it is a statute, or a provision in the governing documents, or some other source. Further, while not all HOAs are the same, the authority granted to an HOA Board is generally found in the governing documents – the Articles of Incorporation; the Covenants, Conditions and Restrictions; or the Bylaws.
In many HOAs, the governing documents provide that the HOA Board is charged with the authority to manage the affairs of the HOA. Prior to Executive Order 2020-36, this authority probably included the ability to close down amenities to spread infection of the coronavirus to other community members, and fell within the HOA Board’s fiduciary duty to look out for the best interests of the association members as a whole. Some HOAs in Arizona have closed down amenities; other HOAs have kept them open but have engaged in efforts to educate their members about Covid-19 and minimizing risks of spreading infection.
In light of Executive Order 2020-36, it may be difficult to continue to justify closure of an HOA’s amenities, absent a strong justification – i.e., the HOA community has suffered from a disproportionately high level of Covid-19 infections and continued closure is necessary for the safety of the community, or some other valid reason. Of course, continuing to educate homeowners on Covid-19 and the risks of spreading infection are appropriate and recommended.