Please Note: This blog is designed for general information only. The information presented at this site is not intended to provide legal advice or a legal opinion and should not be construed as the formation of an attorney-client relationship. Specific questions should be directed to an attorney at NowackHoward, LLC or to another lawyer.
August 5, 2020 was the deadline for Governor Kemp to sign or veto legislation passed by the Georgia General Assembly in this year’s legislative session. Those bills that the Governor did not sign or veto will now become law as of the legislation’s effective date. This includes Senate Bill 359. Known as the Georgia COVID-19 Pandemic Business Safety Act, the legislation will become effective Friday, August 7.
On July 31, 2020, Governor Kemp entered another Executive Order entitled “Renewal of Public Health State of Emergency,” again extending through September 10, 2020 the Public Health State of Emergency initially declared on March 14, 2020.
Governor Kemp also entered another Executive Order entitled “Empowering a Healthy Georgia.” The July 31 version of this Executive Order extends the mandates effective as of July 15, 2020 for in-person operations of condominiums, HOAs, and other organizations that are not Critical Infrastructure. The July 31, 2020 mandates applicable to condominiums and HOAs extend until 11:59 pm on August 15, 2020. For our analysis of the July 15 Order, please see our blog on the topic.
Let’s take a look at how homeowners association attorneys believe the new Pandemic Business Safety Act will apply to current Georgia HOA laws, as well as a board of director’s decision to open or to continue to operate condominium and HOA pools and other amenities. It is intended to again provide the most current information to make those decisions. As always, contact us to address your community’s specific issues and receive legal advice for your association.
Georgia COVID-19 Pandemic Business Safety Act
The Act sets a burden of proof that will be very difficult to satisfy for a potential plaintiff to win a lawsuit related to contraction of COVID-19 at an amenity or other common area. A claimant will have to prove the actions of the community association and its board of directors showed: gross negligence, willful and wanton misconduct, reckless infliction of harm, or intentional infliction of harm. Each of those standards involve a careless disregard of a duty or an intentional act to harm.
By establishing such a burden of proof, the Act confirms our homeowners association lawyers’ previous discussions that winning a COVID-19 lawsuit for damages is unlikely under Georgia HOA laws and regulations.
Immunity Does Not Mean Exempt from Being Sued, Rather the Burden of Proof to Win is Higher
The Act refers to the burden of proof as “immunity” from liability for damages in a lawsuit involving transmission, infection, exposure, or potential exposure of COVID-19. The use of the word “immunity” in the legislation may lead boards into believing their association no longer runs the risk of being sued. That is not correct.
The “immunity” created does not mean a covered entity, including community associations, cannot be sued. The “immunity” means a covered entity cannot be sued successfully unless the claimant can prove one or more of the standards of the burden of proof. The main risk to community associations continues to be the cost to defend a lawsuit for contraction of COVID-19 for the reasons we have discussed at length in our previous Alerts.
A Person Who Enters a Compliant Premises Assumes the Risk of Contracting COVID-19
In addition to creating the higher burden of proof to win a claim, the Act confirms our opinion that a person can assume the risk of exposure to COVID-19, not waive a claim for contracting it. In fact, the new law states that in an action involving a COVID-19 liability claim, there is a rebuttable presumption that a claimant assumed the risk of infection if certain signage is posted at the entry to the premises.
This presumption means a person is deemed to have assumed the risk of infection when entering such an in-person venue. To rebut that presumption in the context of a community association, a person would have to prove that the actions of the association or board of directors intentionally failed to comply with the requirements and guidelines discussed in this and our previous blogs covering Georgia HOA laws and COVID-19 guidelines.
Additional Signage Required by Pandemic Business Safety Act
The signage required by the new law is a sign posted at a point of entry to the premises that states in at least one-inch Arial font placed apart from any other text, a written warning stating the following:
Under Georgia law, there is no liability for an injury or death of an individual entering these premises if such injury or death results from the inherent risks of contracting COVID-19. You are assuming this risk by entering these premises.
Beginning August 7, our homeowners association attorneys recommend that each association place a sign meeting these criteria at each point of entry to each common lobby, pool, tennis court, and all other community association amenities and common areas open for use.
In addition to the above-referenced signage, it is our recommendation that associations continue to require each user to sign an Assumption of Risk document for use of amenities. NowackHoward created this document exclusively for our clients in order to show that all users expressly agreed to assume the risk. So, when entering an amenity, a person will have assumed the risk of contracting COVID-19 both presumptively and actually.
Community Associations Remain Obligated to Comply with Government Mandates
While our HOA attorneys expect the burden of proof and the presumed assumption of the risk imposed by the Pandemic Business Safety Act will have the effect of greatly discouraging the filing of lawsuits, community associations still have the legal obligation to comply with the Governor’s Orders and should also implement the Georgia Department of Public Health and CDC guidance to lessen the chances that an association and its board of directors will be found to have acted with gross negligence, willful and wanton misconduct, reckless infliction of harm, or intentional infliction of harm.
While acting in compliance will make it hard for a claimant to win any damages, a decision to open a pool and other amenities will continue to expose each association to the possibility of incurring the cost of defense of such a lawsuit. Our homeowners association lawyers’ best advice continues to be for each board to determine the association’s ability to comply with the requirements of Georgia HOA laws, the Governor’s Executive Orders and the guidance issued by the Georgia Department of Health and the CDC prior to making a decision on whether to open, or keep open, the pool and other amenities.
Other New Georgia HOA Laws Impacting Community Associations Effective January 1, 2021
In addition to SB 359, there were two other significant bills to become law from this year’s legislative session:
Change to Condominium Act: Governor Kemp signed House Bill 1070 on July 29, 2020. This bill will become effective January 1, 2021 and provide new insurance policy disclosure requirements for condominium associations and unit owners in the event of potential or actual claims for water damage or water peril and clarifies that condominium associations are not obligated to obtain insurance for water damage or water perils in condominiums.
Change to Property Owners’ Association Act: Governor Kemp did not sign or veto Senate Bill 442, so it will also become effective January 1, 2021. This new law prohibits any amendment to recorded governing documents that prohibit or restrict a nonowner occupied lot from continuing to be leased or rented for an initial term of six months or longer until conveyance of the lot for value.
Governor Kemp also issued a statement on August 5, 2020 with the announcement of the bills he vetoed and House Bill 105 that he signed that he will be calling for a special session of the General Assembly to pass a Hurricane Michael tax exemption and to “address other budgetary and oversight issues.” Our attorneys will continue to monitor what the Governor intends, but it is now expected that the legislature to reconvene before the November election.
Please follow our blog for upcoming analysis of these changes in Georgia HOA laws and other news for community associations.
We will continue to monitor Governor Kemp’s now bi-weekly Executive Orders, and any other government orders and requirements, as they are released. In the meantime, and as always, please contact your NowackHoward attorney to discuss your community’s specific issues and unique challenges. We are here to support you in any way your board may need.
If you have questions or want to speak with one of our condominium or homeowners association lawyers regarding your association’s compliance with Georgia HOA laws, Governor Kemp’s updates, and / or the recent update in legislation, give us a call at (770) 863-8900 or email firstname.lastname@example.org and one of our attorneys will be in touch!