HOAs and POAs should start utilizing waiver for using a reopened common area like children playgrounds, swimming pools and tennis courts. The Weaver Law Firm suggests providing correspondence to homeowners thanking them for their patience as they and you navigate new usage procedures for the Common Area Facilities (tennis courts, playground, swimming pool and meeting room). Going forward, all facilities should be integrated into a reservation system that allows Users to reserve time slots to manage capacity at the different facilities. A waiver should be signed for each user — this includes children, grandchildren, nannies, sitters, grandparents. If there is not a signed waiver on file for every user in the household, they should not be granted access to the reservation system.
The waivers should explain that the owner / user acknowledges the inherit risks in using the common areas or facilities. The acknowledgement should include understanding the risk of contracting the virus that causes COVID-19. The owner should assume all responsibility for all risk that would include but not be limited to sickness, injury or death. There should be a representation by the Owner / User that the user, owner and/or guest is sufficiently healthy. The owner and guests should agree not to use the facility for 14 days if they or someone they have been near has been sick. The agreement should also have an indemnification clause to hold the POA or HOA harmless. Since this is not an exhaustive list of what should be included in a waiver and release agreement, please seek reliable real estate representation by a lawyer that is board-certified.
Here is an outline of what the HOA or POA should implement for owners in COVID-19 times.
- ALL Users must sign the Release & Waiver, except children ages 17 and younger.
- Each User must sign their own Release & Waiver form. A family member cannot sign one form on behalf of the household. This means all nannies, sitters, caregivers must sign a waiver.
- If the User is age 17 or younger, the User’s name, address, etc. must be printed at the top of the form and the Guardian must sign the form in the Guardian signature block on behalf of the minor child.
- This means in a household, all adults (parents, grandparents, and children age 18 and over) must sign an individual form. Every single User age 18 and over must read the form, understand they are entering the facility at their own risk, and acknowledge that the Association will not be liable if they become ill due to COVID-19 or suffer any other injury, bodily harm, damage to person or property, etc.
- The Release & Waiver must be signed before a User will be allowed to enter any of the Common Area facilities.
Going forward the signed waiver and hold-harmless agreement should be kept on file in the office for residents to be issued key or reservation access to any Common Area Facility. However, residents should not be obligated to sign the waiver if they do not wish to utilize the facilities. Once the waiver(s) are on file in the office, owners should be given access to the reservation system.
The Weaver Law Firm is a real estate law firm with experience in healthcare law. A board-certified attorney in residential and commercial real estate law can assist you in preparing a Release & Waiver of Liability for Property Owner Associations, Apartment Buildings and Commercial Buildings. You can reach us at 713-572-4900.