Your board may need guidance on a wide variety of items. In most cases, we suggest that it is of much greater benefit to fully discuss the specifics of your situation with the association’s attorney.
Item 2 of the most recent executive order 107 entered by Governor Murphy effective Saturday, March 21, 2020, at 9:00 p.m. requires New Jersey residents to remain at their place of residence unless they are obtaining social services, medical attention, shopping for essentials, visiting persons with which they have close relations or traveling to and from work if they are authorized to travel to work pursuant to other sections of the order.
Item 3 of the executive order requires individuals, if they are out of their homes, to practice social distancing and stay six feet apart except only immediate family or household members or romantic partners. Gatherings of individuals are canceled pursuant to item 5. Public and private social clubs of any sort may not meet pursuant to paragraph 9g of the order.
All businesses or non-profits in the State, whether closed or open to the public, must reduce on-site staff to a minimum by making its best effort to accommodate personnel who can perform their functions via telework or work from home arrangements. Brick and mortar non-essential retail establishments and all recreational and entertainment businesses have been ordered to completely close.
While minimizing disruptions to daily life to the extent possible is an important goal, each community is unique and appropriate mitigation strategies may vary based on the level of community transmission, characteristics of the community and facilities, their populations, and the capacity to implement strategies. Also, mitigation strategies can be scaled up or down depending on the evolving local situation.
Should we close Common Facilities?
Item 9 of the Governor’s order 107 specifically requires “all recreational and entertainment businesses” to close. That paragraph offers a list of recreational and entertainment businesses but the order is not limited to the list. Included in the list are “c. Gyms and fitness centers and classes;” “d. Entertainment centers;” and “f. All places of public amusement, whether indoors or outdoors.”
Although community associations are not recreational and entertainment businesses, it might be prudent to close clubhouse, gym, fitness and pool facilities for as long as the social distancing mandate is in effect, especially if the facility under consideration is small and not conducive to social distancing. Reflecting on the experience of the cruise lines to date, lawsuits have already been filed against carriers for the alleged “lackadaisical” approach to safety in light of the pandemic. Plaintiffs have alleged that cruise lines have failed to put in place preventive measures. While the parameters of the ‘duty of care’ owed to residents using facilities in a private residential community is likely different than that which carriers might owe to their commercial passengers, the lines of negligence in tort are not so clearly marked in pandemic circumstances to allow one to predict with any degree of certainty that associations wouldn’t be legally subjected to similar claims of negligence.
If a decision is made to keep a fitness or gym facility open, proper supplies have to be made available to disinfect surfaces and warnings posted on how to correctly use disinfectants as well as how to stay a safe distance from others. Depending on the space available, a limitation on the room’s occupancy should be imposed. In other words, actions should be taken to try to safeguard individuals and to promote compliance with the executive or other emergency orders in place.
Clubhouse Rentals – should individual parties be postponed?
Clubhouse rentals for parties cannot be honored since individuals may not be present for socializing pursuant to the executive order wherein items 2, 3 and 5 prohibit such socializing and gathering.
Can we cancel our pool contract?
Regarding pool contracts, in every instance where there is an issue of how to proceed and the rights of the parties, each executed pool contract will have to be reviewed since there were many forms used by various pool companies over the years and alterations may have been made prior to signing the contracts prepared by counsel. Further, all contracts (of any sort) under negotiation now should include specific language reflecting the association’s intentions regarding how it would like to proceed in light of the exigencies of the pandemic. This question cannot be a “one size fits all” answer. Any existing contract that proves to be problematic for an association during this time must be reviewed with counsel regarding options before taking any action on the contract. It is not possible to provide hypothetical answers to the many questions that will arise due to the changing nature of the pandemic restrictions, circumstances, and the variety of contracts, services and communities. We stress the importance to consult with counsel on specific contracts prior to taking any action.
Open Board Meetings – Should we invite all owners to listen only to a telephone or video conference to have binding decisions? Must the board have a Q&A of membership at large?
A recent bill signed by Governor Murphy allows county and municipal governments to provide notice and to meet electronically in contravention of existing law. No bill has been signed regarding community association boards. However, the Governor’s emergency executive orders mandate social distancing of individuals who are not family or close persons. As such, in-person meetings are not recommended and should not take place. For business that must be conducted while these constraints are in place, boards may have to conduct their business electronically or telephonically. Matters that can be tabled or put off should be tabled or put off.
When business must be conducted not in the context of an open board meeting, boards should remain mindful of the purpose of the open meeting obligation; that is, to be transparent and open in the conduct of its business. Generally speaking, boards should debate issues and make decisions during meetings so the options and reasons for votes are apparent to member-listeners. Boards might consider whatever strategies work toward fulfilling its obligations of administering the business of the association while being open and transparent for the benefit of the membership. If video or telephonic conferencing of some sort is feasible and the business demands of the association are pressing, then the technique can be employed. Of course, when matters do not lend themselves to those avenues, the board should do its best to meets its responsibilities to act and to be transparent as best as the circumstances allow.
Member participation at board meetings is not ever a requirement under any circumstance of board meetings and so would not be required by these extreme circumstances. Member question and answer is also not a requirement in any board meeting, in person or electronically.