As summer fast approaches, many of us are looking forward to using our community swimming pool areas. Unfortunately, due to the ‘old Covid-19, that may not happen, at least not any time soon. And, if the new draft guidelines on pools just released by the CDPHE come into effect, boards will have to determine whether they have the ability to open the pools in compliance with the guidelines. Note that Coloradans have until June 3rd, noon, to provide feedback on the proposed guidelines, which cover not just pools but a number of indoor and outdoor facilities.
In the meantime, the delay in community pool opening has prompted a barrage of questions, most of which start with “Why do I have to pay my assessments if I’m not allowed to use the pool?” and end with “I want a refund of my assessments because I can’t use the pool!” So, should the association refund or waive assessments because the pool isn’t open? The short answer is NO, you should not. Here are five reasons why:
- Assessments are the lifeblood of the association. Without assessments, the association won’t be able to maintain, operate, or oversee the majority of its responsibilities, including but not limited to pool use, since associations operate on a relatively thin budget to begin with.
- Assessments are an independent obligation of the owner. Non-use of a community area or amenity does not remove the owner’s obligation to pay assessments. Also, the association’s governing documents likely do not allow a waiver of assessments anyway.
- There are still costs associated with a pool even if it’s closed. Think general maintenance, repair, painting, etc.
- The association may open the pool at a later date if it is able to do so while complying with state and local public health directives. If it does open at a later date, those pool operating costs will still need paid. You may also have increased costs due to sanitizing and frequent cleaning or the implementation of additional safety measures required by state or local public health authorities.
- A budget is simply that – a projected budget. While an association’s projected amount for a specific line item (in this case, the pool), may come in under budget, the association’s projected amount for another specific line item (let’s say snow removal), may come in over budget. The association might then reallocate funds from one line item to another in order to keep the budget on track. And, if you are a post-CCIOA association (i.e., created on or after July 1, 1992) that actually does end up having a true surplus as defined under CCIOA, and which might have to provide a refund or credit towards future assessments, the determination of whether there is a budget overage won’t be made until the end of the fiscal year, making any current refund, both untimely and unwise.
As always, you will want to review your association’s governing documents as well as state and local ordinances and public health orders, and consult with your attorney so that you can make an informed decision regarding this issue.
If you have additional questions or would like assistance specific to your association, please call or email any one of our attorneys at Altitude Community Law.