Audio may be found at: www.scshca.com/podcast265
Below is a synopsis of this episode.
Here is a summary of the podcast.
The Board has received questions about the new waiver being distributed by the HOA to all Clubs and Groups. Why is it being done now? In the hope that the State will start to allow the opening of indoor facilities soon, we need the waivers in place for residents to use the Clubhouses. With COVID, the HOA needs to protect itself from COVID claims and the new waiver has such protections. Since there is no insurance for a COVID claim, and residents could be personally liable for any such claim, the HOA needs new waivers in place before residents may use the Clubhouses so that all residents are protected against any such claim. So, before residents can use the Clubhouses, we need these new waivers signed to protect everyone.
We have received questions as to why we need to have waivers at all. Not all residents sign a waiver. It is true not all residents will sign a waiver. There is no legal requirement for a resident to sign a waiver just to live here. A person may live here, and if they do not use Common facilities like the pool, gym, tennis courts, etc. they would never be required to sign a waiver, nor can we make them sign a waiver. Governing documents allow residents to live here and use the streets without signing any waivers.
Simply put waivers put in writing that residents and guests are responsible for their own actions and so they may not file a legal claim for damages. Without such waivers the HOA would be responsible for every accident and claim against the HOA. This would lead to increased claims, increased costs to insurance companies and eventually our rates would increase, or possible insurance companies would not insure us because the risk is too great.
Insurance is for the unexpected and not for the controllable daily acts. Insurance companies do not like businesses that are not proactive in controlling events to help reduce frivolous claims. This not only means taking actions to always ensure safety, but it also includes waivers to explain to residents in legal terms they are responsible for their own actions and so they will not sue the HOA just because an accident occurred on HOA property.
The HOA requires a waiver from those residents and guests that want to use Common Area Facilities like the tennis court, Clubhouse, golf, pool, gym, etc. The HOA has a right to ask for a signed waiver to protect itself from residents using the Common Property. One viewpoint is that all residents and guests using Common Property should sign a waiver. Another viewpoint is that only sport related activities need a waiver, and some residents prefer waivers to be eliminated. The HOA has required a waiver for activities since the beginning of the development. A card player for example, may fall on their own accord in the hallway, break a hip, and then want damages from the HOA simply because their fall occurred on the HOA property. The HOA does not agree that all residents should be able to file a claim and be paid for damages when the accident is the responsibility of the resident.
We are permitted to get waivers from all residents and guests that participate in Club activities, this has been done for years. We get waivers on all residents and guests using the Clubhouse gyms, pools, etc. where we have a main point to check in. We have not gotten a waiver from a resident that happens to buy a ticket for a concert for example, and we don’t have residents sign a waiver to attend that concert. It is correct that we do not have waivers on everyone for every activity. We do the best we can to get waivers but given our circumstances and the different activities we cannot always get waivers for every person for every activity. But that does not mean we should stop getting waivers entirely.
The Board is now, because of a resident request, looking at ways to get more waivers on residents and guests that attend any function, but it is difficult to make that happen. The Board is not looking at removing the waiver requirement that has been in place for years. If residents voted to remove the waiver requirement entirely, knowing all such claims would be paid by the HOA, and possibly each resident personally, and knowing our insurance rates would increase dramatically, that could be a point of discussion if most residents wanted to follow that path.
The Board currently believes that just because some people don’t sign a waiver does not mean we should not get waivers on everyone we can in order to protect the HOA from frivolous lawsuits and claims. I have personally been in court representing the HOA against claims that were the responsibility of the resident, but the resident was seeking damages just because the accident occurred on HOA property. Fortunately, because of waivers and other printed material the judge found in favor of the HOA. The Board believes waivers are in the best interest of the residents of the HOA to protect them legally and financially. Our insurance rate went up $20,000 in one year just because the number of lawsuit threats by residents increased, even though no claims were filed, but just the threat of a claim increased the rate. When insurance rates increase, monthly dues are also increased, so it is in our best interest to do everything we can to keep insurance rates as low as possible.
Board will be looking at ways to require everyone to sign off on a wavier for all activities. But we do not believe it can be 100% foolproof and there will always be people not signing a waiver. Example: if we hold a free concert outside on the driving range, we will not be able to get waivers on every person unless we gate off the concert and make everyone sign a waiver as the enter the concert. We don’t feel that is efficient, so the HOA takes on more legal liability risk in that case. Some residents believe non-sport activities should not sign a waiver, the Board disagrees. But that discussion will take place on Monday to decide on a future course of action and if any changes to waiver requirements will be implemented.
Currently the Board believes the crafts club should sign a waiver, card players should sign a waiver, and anyone using Common Property should sign a waiver. Anyone can have an accident on the Common Property and the HOA Board feels we should protect ourselves from those residents that try to make money for their own irresponsible actions just because the HOA has deep pockets. Just because we can’t get a waiver on every resident for every activity does not mean we should stop getting waivers. We do the best we can, but we also do the best we can to protect the HOA from frivolous claims which will increase costs to each resident.
Some residents believe that all claims except for sports related claims should be paid by the HOA. We get many claims not related to sports and when the HOA is not responsible the Board believes the HOA should not have to pay for such a claim just because the accident occurred on Common Property. Some residents believe that because we have insurance that is enough, the Board disagrees and in the end such actions will lead to higher HOA fees, or possible not being insurable.
Companies that have too many claims will be denied insurance coverage by the best companies with the lowest rates. Too many claims lead to higher rates or no coverage at all. Many insurance companies will not insure unless waivers are in place and they will inspect and approve such waivers. This is the case in my own business. The best insurance rates come from companies that know waivers are in place to protect against the irresponsible and frivolous claims.
Questions have also come up about guests and residents’ responsibility for guests. You are responsible for your guests; it is listed in the Governing Documents and has been that way from the beginning. If your guest goes through a stop sign, we write the ticket to the homeowner and the homeowner must then get reimbursed from their own guest. We do not have jurisdiction over your guests. Many residents have requested that homeowners should not be responsible for their guests. Once again, then HOA fees could go up to all residents for the actions of guests. One guest drove through the closed gates and caused $4,000 damage. We believe the HOA should not have to pay for that damage, so the homeowner was billed for the damages and the homeowner needs to be reimbursed from their guest. We had one guest speeding. Three weeks later after getting a violation and fine, that same guest continued speeding. The homeowner was again cited for an additional $300. If we did not cite the Homeowner, the HOA would have little recourse in stopping such action by guests and the speeding would continue causing an unsafe condition.
COVID is still among us so please practice all safety measures. We have done extremely well in trying to control the spread of the virus given the actions taken by all the residents. We have confirmation on less than 30 cases in our community compared to 244 cases in SCPD.
As we have stated since last June, the HOA is not looking for violations of the State Order on private property, it is the responsibility of each resident to follow the State Order. The HOA cannot give permission for indoor gatherings on private property because it would violate the State Order.
Some have asked about gatherings among residents that have been vaccinated or opening the Clubhouse for use for those that have been vaccinated. Currently the State is granting no exception for vaccinated people, so we are not allowed to open the Clubhouses yet. Gatherings indoors for residents that have been vaccinated is also still not allowed per State Order. To protect all residents financially we must follow that State Order and hope it changes soon, but until then no gatherings are allowed indoors and outdoor gatherings are limited to 3 households.
If you have any questions be sure to let me know.
Take care and be safe.