Circuit Court Upholds Rule Requiring Residents to Sign Assumption of Risk Form As a Condition to Using Certain Common Areas During the Pandemic

A Charlottesville Circuit Court held that a rule promulgated by a Virginia property owners’ association requiring residents to sign an assumption of the risk form prior to using certain common areas was reasonable.  See Norman v. Foxchase Owners’ Assoc., Inc., Case No. CL20-1481 (Albemarle Cnty., Oct. 30, 2020).  From what can be gleaned from a relatively short, but instructive, letter opinion, the case involved the following: 
 

• The Declaration of Covenants and Restrictions (“Declaration”) reserves to property owners an “easement of enjoyment in and to the common area”, which right is subject to the authority of the association to “limit the number of members and to place other reasonable restrictions upon the common area.”  Id.

• Based on safety concerns related to COVID-19 transmission, the Association restricted access to the swimming pool, gym, and clubhouse facilities to those residents who signed an assumption of the risk form. 

• A resident in the association filed a lawsuit alleging that the rule exceeded the authority contained in the Declaration.  The court ruled in favor of the association and the resident subsequently filed a Motion to Reconsider.

• The court denied the Motion to Reconsider noting that Va. Code § 55.1-1819(A) provides property owners’ associations with “the power to establish, adopt, and enforce rules and regulations with respect to the use of common areas…except where expressly reserved by the declaration to the members.”  Id. (citing Va. Code § 55.1-1819(A)).  Looking to the Declaration, the court found that it reserved to owners an “easement of enjoyment in and to the common area”, but that such easement right is subject to the association having the authority to “limit the number of members and to place other reasonable restrictions upon the common area.”  Id.  The court interpreted these provisions to mean that an owner’s right to use common areas such as the pool, gym, and clubhouse are limited to reasonable restrictions imposed by the Association. Id.

• Notably, the court reiterated several practical considerations pertinent to its initial ruling. Specifically, that the COVID-19 pandemic presents a “unique and unprecedented safety challenge” and “[u]se of common area facilities, particularly without appropriate social distancing measures, could lead to transmission of the virus.”  Id.  In addition, “[p]osted signs would not communicate the risks of transmission as effectively as a mandatory form…[because] [a] mandatory form compels the signatories’ attention, if only for a moment, in a way that a posted sign does not.”  Id.  Accordingly, the court found that the association’s rule requiring residents to sign an assumption of the risk form prior to using certain common areas was reasonable.

 
This ruling provides helpful language and confirms that reasonable rules, for which there is express rule-making authority in a recorded document, will be upheld.  The ruling is not binding since it is a Circuit Court case, but may be persuasive.  The ruling in this case was based on the particular language contained in the Declaration.  If an association considers adopting a similar rule, it should consult with association legal counsel for guidance. 
 
Contact us if you have any questions about interpreting association governing documents and promulgating rules.  Vandeventer Black has a knowledgeable and experienced team of community association attorneys.  We are here to provide guidance and help navigate these extraordinary times.  Vandeventer Black has the technology and resources to provide responsive and effective legal services.