Our association is considering allowing instructors to give exercise classes in our clubhouse. What should we consider?
There are numerous considerations when allowing third parties to use a common area clubhouse to provide classes or other services. However, it is the facilitation of exercise classes that raises the most concern.
First, there’s a risk that the facility would be considered a health club or gym. For example, in Massachusetts that would mean that at least one automated external defibrillator must be located on the premises. Of course, one exercise class does not mean the clubhouse will be considered a health club, but the question should be analyzed and answered.
Additionally, whether the classes will include the public must be considered. If the public is invited, the clubhouse would likely be a public location that must comply with the Americans with Disabilities Act. Compliance can be expensive, and a failure to comply can expose the association to lawsuits, administrative proceedings, and penalties.
As a party responsible for the management and maintenance of the facility, the association could be liable if a person is injured. The board should ensure that the clubhouse space is fit for the intended uses it is contemplating. Also, as no level of inspection or maintenance can guarantee a user will not suffer an injury, the association should require all participants to sign a liability waiver. The waiver should separately release the association and should include a statement to the effect that the association does not make any representations about the qualifications of the instructor or services provided. The board also should check with its insurance agent to make sure the use is covered.
Furthermore, I would ask the instructor to indemnify the association in the event it gets sued for anything related to the exercise class. If the instructor is to be paid, the association should confirm that this does not impact whether insurance coverage will be available under its general liability policy. It also should be discussed with the insurance carrier whether the board has workers’ compensation available to cover the instructor.
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Thomas O. Moriarty is principal at Moriarty Troyer & Malloy in Braintree, Mass., and a fellow in CAI’s College of Community Association Lawyers (CCAL).