To protect residents, some boards have suggested a policy that would allow only vaccinated residents and guests, not unvaccinated ones, to access common elements.
NAPLES, Fla. – Now that a lot of the population is getting a COVID vaccination, we are hearing that a few Boards of Directors of area Condominium or Homeowners’ (HOA) Associations are floating the idea of considering requiring proof of vaccination for owners, family members, tenants and guests in order to use the common area amenities such as the clubhouse, social room, fitness room or swimming pool.
For the following reasons we do not believe it a good idea to try to implement such a requirement:
Purchasers of condominium units and single-family homes in a homeowners’ association are granted an easement and right to use all of the common facilities along with all the other owners in the community, as are the purchaser’s family members, guests and tenants. Only allowing those with proof of vaccination to use the facilities would arguably be a breach of this substantive right granted to each owner to use the facilities.
Allowing some residents to use the facilities who provide proof of vaccination while disallowing the rest would arguably create two classes of citizens in the community, which some Florida Courts have found to be prohibited.
Showing proof of vaccination could be considered disclosure of a medical record of the person. Per relevant Florida Statutes, such medical records in an association’s possession are not to be accessible to unit owners or homeowners. Access to such vaccination records could easily be breached thereby setting up the association for a possible lawsuit.
If a person chooses not to be vaccinated because of religious reasons, requiring proof of vaccination could expose the association to religious discrimination.
The governor of Florida has passed an Order prohibiting business from requiring vaccination passports. A Condominium or Homeowners’ or Coop Association is a not-for-profit corporation and must follow many Florida business regulations so it is arguably a business.
The State Legislature has also passed laws this session to provide a lot of immunity protection to businesses from COVID lawsuits.
So there are many potential pit falls that could befall an association if it tries to require proof of vaccination to use the common facilities and if litigation ensued, it could become very costly.
The real question then is whether there is any great safety or security advantage to requiring vaccination passports for use of the common facilities in a community in light of the strong political push back from some owners and possible litigation the association may face in doing so. Masking and social distancing has already been in place for many communities. The changes of vaccinated individuals getting COVID are very slim and those who choose not to vaccinate have made a personal decision to accept the risk of getting sick or deathly ill from COVID. It would be extremely hard to prove that someone got COVID using the common facilities of the community.
It appears the downside to a community requiring vaccine passports far outweighs the marginal possible benefit of requiring them.
If an association board still wanted to require such vaccine passports, we would suggest that it would need to at a minimum amend its governing documents, with a full vote of the membership in the community, as a board vote would have to be “reasonable” and many would consider such a passport requirement as unreasonable. However, an amendment to the Declaration or Bylaws with a membership vote would not have to be reasonable as long as it is not arbitrary, capricious or unconstitutional.
Rob Samouce is a principal attorney in the Naples law firm of Samouce & Gal, P.A. He is a Florida Bar Board Certified Specialist in Condominium and Planned Development and concentrates his practice representing condominium, cooperative and homeowners= associations in all their legal needs including the procedural governance of their associations, covenant enforcement, assessment collections, contract negotiations and contract litigation, real estate transactions, general business law, construction defect litigation and other general civil litigation matters. This column is not based on specific legal advice to anyone and is based on principles subject to change from time to time.
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