[co-author: Kathleen Panagis]
Spring is here, which means pool season is upon us. Traditionally, this is when community associations throughout Virginia prepare for pool season. Now, with Virginians ordered to stay home, social distance, sanitize and limit in-person gatherings through June 10, 2020, community associations may need to review their pool contracts.
Pool contracts generally involve two main parts: (1) maintenance (including pool openings and closings) and (2) lifeguard services. Even if community association pools are not permitted to be open to members during any part of the pool season, associations may still need to take necessary steps to ensure pools are properly maintained. Lifeguard services, however, probably are not needed during any period when residents are prohibited from using the pools. Pool contracts should be reviewed to determine whether the scope of services can or should be modified for the changed circumstances.
Pool season is usually Memorial Day weekend through Labor Day Weekend (give or take). The stay home order extends beyond opening day. Whether the season is merely delayed or canceled by governmental orders, associations continue to have the responsibility for upkeep, maintenance, and repair of the pools as part of the common facilities. This means whatever typical maintenance and repairs that are performed in anticipation of pool season, as well as during the pool season, should continue so that the common property is properly maintained and preserved. In addition, continuing with seasonal pool maintenance and repair helps ensure an association’s pool is ready whenever governmental restrictions are lifted. Pool contracts should be reviewed to determine if the length of services provides a basis for cost adjustment.
If the scope and length of services needed under the association’s pool contract should be adjusted, look at what the contract provides for modification and how that occurs. Most contracts contain a boilerplate provision that can be modified by a written agreement signed by all parties. If the contract is silent on modification, an association most likely will only be able to modify an existing contract if both the association and the pool services contractor agree in writing to such changes.
Certainly, pool companies will not want to change the terms of a contract, particularly those that will lower the contract price, but many will see the extenuating circumstances and long-term relationship with the community associations as compelling. If modifications are not possible or agreeable, look at other provisions in the agreement, including termination, notice, indemnification, and force majeure. Force majeure is a “superior force” that may excuse performance under a contract. Not all force majeure clauses are created equal. If the stay home order permits the pool company to provide services; nonetheless, it may provide no “out” or reduction for the association. For more information on force majeure provisions in commercial contracts, see our firm’s article in this link.
Like many contractual matters, this is not a DIY project. We encourage you to have your association attorney review the contract and make recommendations regarding options and requirements to modify or terminate contracts. A look back at existing contracts should also be viewed with an eye toward next season’s contract and including provisions in future agreements that an association wishes were in place in an existing contract.
Vandeventer Black has a knowledgeable and experienced team of community association attorneys. Please contact us if we can assist in reviewing your community association’s contracts as well as negotiating and drafting changes. We can help your association navigate these extraordinary times, as well as the more routine business as usual. Vandeventer Black has put in place technology and resources so that we can continue to conduct business and provide responsive and effective legal services.
