Some associations require that those who use the common area health club/exercise facility sign a "hold harmless" agreement or "waiver of liability." Such agreements have been held to be valid and enforceable.

In Lewis Operating Corp. v. Superior Court, a tenant suffered personal injuries while using a treadmill at a tenant-only common area exercise facility/health club amenity within the apartment complex. The tenant filed a lawsuit, which the landlord argued was without merit because the tenant had signed an agreement to waive all negligence claims arising from the tenant’s use of the health club facilities. The court agreed with the landlord and upheld the validity of the tenant’s signed waiver:

We conclude that where a landlord chooses to enhance its offering by providing an on-site health club or exercise facility that goes well beyond bare habitability, there is no reason why the landlord may not protect itself by requiring the tenant, as a condition of use of the amenity, to execute the same waiver or release of liability that could lawfully be required by the operator of a separate, stand-alone health club or exercise facility.

RECOMMENDATION: Although this case arose within the landlord-tenant context, courts often utilize similar standards when deciding analogous cases involving homeowner associations. Accordingly, boards may wish to consult with legal counsel about whether something similar would be appropriate for their association.