BERKELEY – Public property in senior communities can reopen without fear of lawsuits now that the governor has signed a bill providing them indemnity.
This had been an issue since the start of the pandemic. Pools, clubhouses, and other amenities were closed to the public. At first, it was a safety issue. Homeowner associations didn’t have the staff to wipe down every surface or to police the area to keep people wearing masks and socially distancing.
But the legal issue was looming in the background. If someone believed that they caught COVID-19 in a clubhouse, they could sue the homeowner association as well as every member of the board. It could potentially devastate the association and bankrupt those in charge. Even if they did everything right, and followed all the rules to keep people safe, they could still get sued.
It doesn’t matter that it might be difficult to prove that someone contracted a virus in a particular location. All that matters is that a lawsuit is possible. And lawsuits cost money.
Meanwhile, residents were mad that they were paying dues for amenities that were closed.
Therefore, a new law was recently signed that will indemnify the homeowner associations and its officers. This means that they are protected from lawsuits.
The State Senate bill, S-3584 and Assembly bill A-4979, were supported by a number of township governing bodies like Berkeley where there are a lot of senior developments.
The bill reads, in part: “Any illness, injury, death, or other damages arising from, or related to, an exposure to, or transmission of, COVID-19 on the premises of a planned real estate development shall not give rise to any cause of action.
“The immunity provided pursuant to subsection a. of this section shall not apply to acts or omissions constituting a crime, actual fraud, actual malice, gross negligence, recklessness, or willful misconduct.”
It’s important to note that the law protects all homeowner associations, not just senior ones. However, because Ocean County is home to more over 55 retirement developments than any other county in New Jersey, the impact to seniors was huge in the area.
Some senior communities had started to open slowly, changing their own policies. For example, one made residents sign a waiver that they wouldn’t sue if they contracted coronavirus. Some allowed members only in their facilities, not guests.
These steps were taken to circumvent lawsuits but it’s likely that they will be eased now that the indemnification is in place.
It is unknown if any senior community had been sued, however the governor was sued.
The Senior Coalition of Berkeley Township and the Holiday City South Homeowners Association sued Gov. Phil Murphy and the New Jersey Department of Health to enable senior residents to use clubhouses and other amenities again. Their suit was filed on May 4. The lawsuit was for seniors “to be able to enjoy fundamental rights guaranteed under both the New Jersey and United States Constitutions.”
Berkeley Councilman Michael Signorile, who chairs the Senior Coalition, said his goal is to “Get our community, especially our seniors, sensibly back to managing themselves without Trenton imposing arbitrary rules that are not consistent with the Centers for Disease Control and Prevention (CDC) and plain old common sense.”
“We just want to bring some rationality to this pandemic’s irrationality,” Signorile said when the suit was filed. “Certainly, this lawsuit will likely accelerate a much-needed public dialogue about Trenton dictating policies which, at this time, are simply punishing seniors for no good reason.”
Nearly a decade ago, insurance companies inserted pandemic exclusions in the policies they wrote for condominium associations and other similar developments. Simply put, this meant an insurance company could legally deny pandemic-related claims brought against the homeowners’ association.
The Berkeley Township Council sent a message to the powers that be in Trenton that read, in part, “The health and welfare of our senior population depends on their ability to socialize and interact with peers. Our seniors have been shut in so long that it is having devastating effects on their mental health and well-being. Berkeley Township has one of the highest senior populations in the state and I hear from them every day. Not being able to go to their club houses to interact with others, and enjoy the pools and other amenities which their Senior Planned Real Estate Development Association provides has been life changing.
“The officers of all ten of the (senior communities) in Berkeley Township have told me that they do not feel they can open their facilities due to the threat of litigation should someone assert that they contracted COVID-19 while in their clubhouse or at their pool. This proposed legislation rightfully gives immunity to (senior community associations) provided they act in good faith.”
Senator Christopher Connors, Assemblyman Brian Rumpf and Assemblywoman DiAnne Gove (R-9th) weren’t sponsors of the bill but they reported that the bill had been signed into law.
“It was a unanimous and bipartisan act by the Legislature to pass this legislative initiative so that residents of senior communities can use their clubhouses and pools without fear of their HOA facing COVID-related lawsuits,” they said in a statement.
“Most board members of HOAs are volunteers who have been placed in difficult positions to act what they determined to be in the best interest of their communities with respect to the opening of facilities. With the signing of S-3584, which takes effect immediately, board members of senior community residents can breathe a sigh of relief and move forward without the threat of their community being sued and forced to spend thousands in legal fees,” they said.