By Zachary Roth, Attorney
School is back in session. That means that sports teams, organizations and groups are in full swing with activities. It’s possible that an outside group might inquire about using your community’s common areas like sports fields or community rooms.
These are some important points to keep in mind when considering their request:
1. What do the association’s governing documents say? Often the governing documents of the association, likely either the declaration of covenants/condominium or the rules and regulations, provide guidelines on this issue that you should thoroughly understand. They may specify the activities for which common areas may be used, to whom their use is limited, what activities the property may be used for, the rights of non-members to use the common areas and other considerations.
2. What is the association’s liability? Before allowing anyone to conduct an organized activity in your common areas you should evaluate potential sources of liability and the association’s options in the event of an issue. Potential sources of liability may include an injury suffered during the activity, accidents or other issues associated with the traffic for the activity, claims of misuse or breach of duties by members or if the space is adequate for the requested activity. This list is by no means exhaustive. Be sure you understand the association’s responsibilities should an incident occur. That includes knowing if the association is appropriately insured or considering preparing a waiver of liability prior to use, drafted in consultation with an experienced attorney.
3. What’s the intended use and does it work for the requested space? Before providing permission to anyone to use the common elements, the association should consider whether the area is appropriate for the suggested activity. Also keep in mind if the event will prevent members from using the property and the consequences of that decision.
4. Will granting this request open the flood gates? Granting permission for one group to use common areas may invite other requests for the space. It may initially seem like there is not much demand to use the common areas for such organized activities, but it could be because permission had never before been granted. If other groups learn that the common areas have now been made available to the public (or at least organized groups), they may seek the right to use the space as well. This could possibly expose the association to issues with overuse of the space, challenges in managing the number of requests or even accusations of discrimination against certain groups or activities, among other challenges.
5. How will it impact members? An association must keep in mind that the common elements are, first and foremost, intended for the use and enjoyment of its members. An association must be wary of any activity that could monopolize use of some common area to the exclusion of the members. For example, allowing a swim team to use an association pool could cause members to be excluded from the pool for that period. As members pay assessments in part to maintain those areas, they may be upset that their access to the pool would be restricted because of use by non-members and/or outside groups.
These considerations are by no means exhaustive and every circumstance will present unique and unforeseen issues. Often the evaluation of governing documents, insurance policies, and other factors is complex and may require expert review. If that is the case, the association can protect itself by seeking the advice of an attorney qualified in such matters.