They Say You’re a Little Much for Me, You’re a Liability:

Swimming Pools, Gyms, Playgrounds, Clubhouses, Tennis Courts and More

Let’s start here: The common area amenities in our developments are one of the major advantages to purchasing a home in a common interest development. Whether it be a pool, gym, playground, clubhouse, tennis court, or more, these amenities all have appeal when we make our home selection. I think one of the major perks of these common area amenities is that as an individual owner you typically do not have the duty to maintain them.

What this means is that the association has a duty to maintain these amenities and could potentially face liability if someone is injured due to lack of maintenance or a failure to draft and/or enforce rules of conduct.

So, what are the risks?

Swimming Pools: Obviously, drowning is the biggest concern when it comes to pools and hot tubs. However, unclean water or overly treated water, an uneven or slippery pool deck and loose handrails would be other potential sources of liability.

Gyms and Playgrounds: Ok, so the truth about gyms and playgrounds is that the user can be the biggest liability. Some equipment requires training, and certainly most equipment requires regular maintenance. Rules need to be posted. For example, don’t lift heavy weights alone! I say this because when I was in my early 30s I decided that I wanted to be able to bench press twice my weight. I was traveling for work and had time to hit the hotel gym. No one was in the gym and I decided to go for my personal record.The bar went up and the bar came down, but guess what? I couldn’t get it back up again and I was trapped. I had to wait until someone came in to help me. It was embarrassing to say the least.

Clubhouses/Outdoor Grill Areas: Obviously, when kitchens or fire of any kind are involved, maintenance and safety are of the upmost importance. Most homeowners love to use the common area grills, so rules and regular inspections are key.

Tennis Courts/Basketball Courts: Like gyms and playgrounds the main hazards for these areas are user error, so rules must be posted. However, improperly maintained areas could result in cracks or raised surfaces and can cause injury.

What obligations do associations have when it comes to common area maintenance?

Associations have an affirmative obligation to repair and replace the common areas under California Civil Code section 4775. In addition, the association may be bound by further restrictions and/or obligations under their governing documents. The main duties that a board has in acting as an agent for an association are as follows: (a) Duty to Inspect; (b) Duty to Investigate and (c) Duty to Repair.

Duty to Inspect: Every association should consult with their attorney regarding what is

required of them both under the Code and each individual association’s governing documents. In general, each association must inspect their common areas every three years and have a reserve study prepared in accordance with those inspections. It is imperative that every association know the useful life of their common area components, including but not limited to their amenities.

Duty to Investigate: Under both the California Civil Code and the California Corporations Code a board has an affirmative duty to investigate common area issues reported by members of the association. It is always the best move to have a licensed and bonded company or individual do this work. It not only ensures that an accurate evaluation of the reported issue is made, but it greatly decreases the liability the association may face. It is important also to remember that these investigations can reveal that the issue is actually not part of the common area maintenance responsibility. What this can mean is that what an association originally thought was their responsibility to pay for and repair may actually be an individual homeowners.

Duty to Repair: Once an association is made aware of an issue with their common area amenities, they are under an affirmative duty to repair the issue. The Board cannot hide their heads in the sand or refuse to address the issue. They may need to close the affected area until it is repaired. This may be the result of inadequate reserves or a recommendation by a retained expert that the area cannot be made safe without repairs.

A Note on Rules

An association should work with counsel to carefully draft rules related to their common area amenities. While these rules typically do not wholly eliminate liability, they can greatly decrease the risk of harm. For example, limiting pool access to minors only when accompanied by an adult.

In summary, those of us who live in common area developments love our amenities. Not having the burden of maintenance fall on us as individuals is a great perk from being a member of an association. The keys for associations are to: (a) keep these areas in a safe condition, (b) investigate homeowner complaints and (c) have a clear set of rules that protect members and guests.

If you are having issues with these amenities, then consult your attorney and ask them the best way to approach limiting their liability and staying within the four corners of the law and the association’s governing documents.

Dylan D. Grimes ESQ.

Dylan D. Grimes, Esq.

Dylan D. Grimes, Esq.