A homeowner writes to IAC, wondering if she should sue her HOA to force them to allow her to enter the community swimming pool and gym without wearing a face covering.
I am considering a suit against our HOA. My problem is simple from my point of view. I am not allowed to use our complex pool unless I wear a mask.
We are required to wear a mask until we enter the gym, then we may remove it. I am not able to tolerate a mask. I believe someone complained because I didn’t wear a mask.
I just wanted to know if this is a good idea. I don’t want money. All I want to do is use the pool. They’re saying, in common areas, masks have to be worn. At least half of the people don’t wear masks in all of the common areas. I don’t see anyone staying home due to this.L.P., Arizona
L.P. goes onto explain to me that she hasn’t been exposed to anyone with COVID-19. She says, due to medical problems, she has remained at home since February. The homeowner enjoys swimming in the community pool. It provides relatively safe outdoor activity for her during a these trying times.
She also wonders whether the HOA can restrict her access to the amenities she pays for. She feels it’s unfair to fork over more than $2500 annually, when she cannot enter the pool area.
Obviously, the national debate over mask mandates has become highly politicized. And, for some people, wearing a mask creates undue anxiety or breathing problems. Neverthelss, the majority of Americans agree with state mandates to wear face coverings to reduce the spread of the coronavirus.
And, regardless of your opinion about the benefits of government-imposed mask mandates, HOAs must comply with such policies.
Can your HOA make exceptions to the rules for a resident with medical disabilities?
Here’s my response to L.P. (Disclaimer — I am NOT an attorney, so this is not a legal opinion, just my personal opinion.)
In my personal opinion, this is a legal battle you’re not likely to win.
Here’s why I don’t believe it would be wise to sue the HOA. I doubt the court would make an exception to the face covering rule for your or other residents.
It’s not easy for your HOA to make an exception to its mask rules
In all fairness, your HOA has no way to verify that you’re not contagious. Likewise, they cannot confirm that you’ve remained isolated at home for months. The HOA is not in a position to monitor the movement or health condition of its members or residents.
Legal liability for HOA
Many prominent HOA industry attorneys are warning their clients of legal liability to the Association if someone becomes ill with COVID-19, and decides to sue the HOA for failing to protect its members. Mask-wearing rules help prevent the HOA from having to pay out big money in the event of a lawsuit. It’s a sad but true reality in our litigious society.
Even if you’re not contagious, others who have been to the gym or pool area might be. According to the World Health Organization, scientific evidence suggests that viral particles can become aerosolized and remain in the air for hours. There’s also evidence that a face covering offers some measure of protection to the wearer, not just to other people. Even if you’re alone in the common area, if you’re not wearing a mask, you could inhale airborne viral particles. As a result, you might then become infected and ill with COVID-19. As noted above, if you were to become ill, the HOA is rightfully concerned they could be sued.
The truth is, it’s difficult to prove precisely where a person has contracted the virus. But we live in a highly litigious society. The cost of defending against such claims is significant, even if the HOA has done nothing wrong. Those legal costs ultimately pass onto homeowners – win, lose, or draw.
Residents are reluctant to waive their rights
In some cases, HOAs require their members to sign a waiver document before using common amenities (such as a gym or pool), giving up their right to sue the Association if they later become ill with COVID-19. This is a highly controversial policy, and some homeowners have refused to sign such a waiver. As a result, they are not able to use the amenities they pay for. Many homeowners want the HOA to reduce their fees correspondingly. Most HOAs are refusing to do so. So far, this is an unresolved issue in HOAs across the nation.
Public health vs. “reasonable accommodation”
Let’s assume that you are able to provide the HOA with a doctor’s note. That letter might state that you should not wear a face covering. It still might not resolve the dispute. Your HOA could argue that it must weigh public health risk against the HOA’s risk of legal liability. Ultimately, your HOA may not have to make an exception for you to enter the common areas without a mask. (For further guidance, see HUD Reasonable Accommodations and Modifications.)
Given all of the above considerations, I think you’d be facing an expensive uphill legal battle. You’d have to convince the court that an HOA must make an exception to public policy, despite increased health risks.
The face shield as a compromise?
As a possible work-around, have you considered wearing a face shield in lieu of a mask? Be aware that face shields have their limitations. But I have a hunch that such a compromise might satisfy your HOA’s concerns, while also providing a more tolerable option for you.
HOA fee reductions?
What about the fees you’re paying for amenities that you may be unable to use?
If a vocal majority within your community are willing to press the issue, you might convince your HOA to temporarily discount its amenity fees. But I wouldn’t count on it.
If the HOA were to reduce its fees for you, but not for others, your neighbors would probably object.
In conclusion, your best bet is to work out a reasonable compromise with your HOA, if possible.
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