Availability of Common Area Facilities as COVID-19 Restrictions Ease
By Bruce Stanton, GSMOL Corporate Counsel
At the start of the COVID-19 pandemic, GSMOL received many questions and concerns from our members regarding the closure of clubhouses, pools and other common area facilities due to the virus, and the issuance of “stay-at-home” and “shelter-in-place” orders at both the State and local County levels. GSMOL posted a website message recommending that Members obey those government orders and to avoid the risk of using the common area facilities during pandemic conditions for their own health and well-being. GSMOL also advised that due to these unique conditions, County Health Orders and Governor’s Emergency Declaration would take temporary precedence over the Mobilehome Residency Law (MRL) when it comes to the park owner’s Civil Code 798.24 obligation to make common area facilities “open or available” to park residents “at all reasonable hours”. There were, and in some places still are, significant health reasons for keeping facilities closed, and depending upon the colored “tier” level which applies to a given County, common area facilities might still be prohibited by law from being “open and available”. Park owners may be advised by their insurance carriers that they cannot open facilities in violation of such Orders without risking uninsured loss. The virus was not the fault of anyone, including the park owners, and we all should listen to and follow health directives being issued by government leaders during these challenging times.
The above-referenced message was posted on the GSMOL website in April, 2020, and was very relevant for the times when much was still unknown about the virus, vaccines were months away from being developed and a strict “shelter-in-place” was ordered throughout California. However we now find ourselves in far different circumstances. Vaccinations are finally progressing at a reasonable pace, providing hoped-for immunity for many Californians. County health orders are being modified to allow limited “in person” gatherings and the re-opening of indoor establishments as Counties move out of the “purple tier” into less restrictive tiers. And the state-wide “stay-at-home” Order has been lifted. Under these circumstances it is reasonable to expect that common area facilities in mobilehome parks can now start to re-open under limited conditions, and in compliance with what each County allows. GSMOL’s concern is that park owners not use the pandemic as an excuse to keep their common area facilities permanently closed, regardless of what the local County allows. To do so would not be “reasonable” under Civil Code 798.24, and would amount to a violation of the MRL.
A park owner is a “business” just like a restaurant or a retailer. Thus, when a County allows ”businesses” to resume limited operations, this applies to park owners as well, and arrangements should be made to allow clubhouses, pools and the like to re-open subject to whatever safety protocols the County requires. This includes limited occupancy, sanitization, mask-wearing and social distancing. A park owner is well within its right to limit usage according to what the County requires. But concerns about the cost or labor involved in such a re-opening should not be the basis for a park keeping its facilities locked up. It is still management’s obligation to follow the MRL, regardless of the virus, and to take whatever steps are available to re-open. Management and its employees might need to be trained in proper safety procedures and become more vigilant about the number of persons using the facilities. But this “extra work” would not justify a discretionary closure of facilities. Park Owners should be guided by what the County allows, rather than the cost to implement County safety protocols.
There are many “moving parts” to this issue, and conditions are sometimes changing day-to-day. Vigilance and adoptability are required. But we are now at a point where we can recommend the following advisory policy for GSMOL members on this issue:
- Follow and closely monitor the health Orders being issued by your local County. Look for any Order which lists “stay-at-home” restrictions and allows businesses to resume “indoor” or “outdoor” activities.
- At such point as guidelines for your County confirm that businesses can resume “indoor” operations, ask your park management in writing whether common area facilities shall be allowed to re-open consistent with those County health guidelines.
- If you receive no response from management, or receive a reply that seems contrary to County health guidelines, contact your County officials to obtain verification that the park IS able to re-open any of its facilities safely in compliance with County guidelines. Obtain that verification in writing if possible.
- Communicate the County response to park management and request that management re-open facilities based thereon and provide the safety guidelines for usage.
- If park management refuses, consider making a claim for a “service reduction” pursuant to your local rent stabilization ordinance if you have one which contains such a provision. Or consult with an attorney about a possible breach of contract or MRL violation. A resident can also go on-line and file a claim with the Department of Housing and Community Development (HCD) pursuant to the new Mobilehome Residency Law Protection Program (MRLPP).
Other relevant Questions and Answers:
Question: Can a park owner use new Civil Code 1942 (b) as an excuse to keep common area facilities permanently closed?
Answer: NO. Civil Code sec. 1942.9 was enacted in January, 2021 as part of SB 91. It provides in subsection (b) that a landlord who temporarily makes unavailable a service or amenity in compliance with federal, state or local public health orders or guidelines shall not be considered in violation of a rental agreement or to have reduced services under any rent control ordinance. The key language here is that the closure must be “in compliance with” government orders. If State or local government allows facilities to re-open, then a park owner cannot be deemed to be “in compliance” with those Orders if facilities remain closed, and this new law would not shield them from liability.
Question: Can a park be required to re-open an outdoor facility such as a pool, even if indoor facilities are not re-opened?
Answer: YES, if the local County health Order so allows. On March 22, 2021, an Administrative Hearing Officer issued a decision under the City of Hayward’s Mobilehome Ordinance in favor of the residents of Mission Bay Mobilehome Park, who had filed an application for a rent reduction due solely to the closure of the pool. The hearing officer found that the park owner did not re-open the pool at such time as Alameda County allowed it to do so, and could not in its discretion keep the pool closed without triggering a “service reduction” under the Ordinance. It was ordered that each resident was entitled to a one-time rent rebate equal to 1.5% of the monthly rent paid for the months of September and October, 2020 when the pool remained closed contrary to County health Orders.
Question: Can a park owner require a resident to sign a “COVID-19 Release/Waiver” form as a condition of using common area facilities?
Answer: Yes, as long as the “Release/Waiver” is specifically limited to COVID-19 related illness. It is reasonable for a park owner to say that it cannot be an absolute guarantor that residents will not catch the virus, and require a reasonable waiver and release. But this should not extend beyond COVID-related illnesses. And it would not excuse the park owner from taking whatever steps are required to provide a safe environment. Failure to do that could effectively void the “Release/Waiver”.