As the temperature rises, so does the importance of understanding your HOA’s swimming pool rules and regulations before making a splash! Homeowners often have questions regarding who can enforce swimming pool rules, how to change any rules they dislike, guest fees for visiting grandchildren or friends, and the ability to teach swim lessons in your community swimming pool.
Question #1: I live in a house that is close to the neighborhood swimming pool. I just received a copy of our newsletter that contained the swimming pool rules and listed the hours of operation from 10:00 a.m. to 10:00 p.m. I am upset with the closing time as I think it is too late, and I know I will be bothered by the noise. I feel I should have had a say on the pool closing time and should have had the opportunity to vote on this issue. What can I do?
Answer: The Board of Directors of the community association is responsible for the maintenance and operation of the common areas. Generally, either the Declaration or By-Laws of an association authorize a Board to adopt rules and regulations regarding their use. Owners do not get to vote on the adoption of rules and regulations. Setting the hours of operation of the common areas is a standard regulation that is within a Board’s authority to determine. Georgia Courts uphold rules and regulations adopted by the Association so long as they are reasonable and are applied in a uniform manner.
My advice to you is to wait and see how you are affected. If the noise is excessive, you should invite the members of the Board of Directors to come to your home and hear the noise level for themselves. Just as the Board can adopt rules and regulations without a vote of the members, the Board can also modify the rules and regulations with homeowner input. If the noise/nuisance is uncontrolled, the Board can change the closing time to an earlier hour.
Question #2: I live in a “swim and tennis community”. Last year, I learned that “swim” means almost every family with children participates on the Association’s swim team. The swimming pool rules outline the pool is closed during swim meets for use by anyone that is not on the team and is also closed during practices. My children do not participate on the swim team and have been turned away from the pool during practices and meets. I pay my dues on time. Does the Board have the authority to close the pool for the exclusive use of the swim team?
Answer: Your frustration is understandable. However, the Board of Directors of an Association does have the right to limit the use of common properties. I would recommend checking your community’s Declaration to be sure, but virtually all Declarations condition an owner’s right to use the common properties on the right of the Association to close or limit the use of common properties. That means no owner has an absolute right to use the common properties at all times.
Depending on the size of your pool, it might be reasonable for the Association to allow non-swim team members the use of one or two lanes during scheduled practices. Alternatively, practice times could be set early in the day, before the pool is officially opened so that it will not limit non-team members’ use during the day. When it comes to meets, it is probably not feasible to designate an area that is open for use by non-team members.
Question #3: My husband and I live in a community association that has a swimming pool. My husband and I never use the pool. Our two grandchildren are coming to spend several weeks with us this summer. The swimming pool rules state that visitors and house guests that use the pool more than three times in a season must pay a “guest fee” of $5.00 for each use after three. We have asked the committee to waive the guest fee for our grandchildren and they say they will not waive the fee. Can you help us?
Answer: As explained in the answer to Question #1, a Board of Directors has the responsibility of maintenance and operation of the common areas. Included within that authority is the right to impose a “guest fee” for the use of the facilities. Since the rule gives a person three “free” uses of the pool per season, the rule is intended to avoid misuse of the pool by repeated “guests” of owners. Perhaps you can suggest a slight modification to the charges. Some Associations offer a charge for “house guests” that will be spending more than a week with an owner. A flat fee is typically charged for that time and is less than the daily fee charged for the occasional guest.
Question #4: I live in a Homeowner’s Association. The Association has an Olympic-size swimming pool. I am a certified swim instructor. I started using the pool for both private and group lessons. The president of the Association came to see me last night and told me I could not use the pool for lessons. She said something about insurance and liability issues and that I was using the pool for commercial purposes. I pay my dues, so I have the right to use the pool. Don’t I have the right to use the pool to teach lessons?
Answer: No, you do not have a right to use the community swimming pool to teach swimming lessons. As a lot owner, you only have an easement to use the pool. You do not own the pool or have an interest in the pool. The pool is owned by your homeowner’s association, and your right to use the swimming pool is subject to rules and regulations adopted by the Board. Therefore, the Board can prohibit the use of the pool for any commercial purpose.
Some association Board of Directors have permitted private swim instructors, such as yourself, to use the association pools for lessons. In these instances, the swim instructor, student, and the parents of minors are required to sign a release. A release is a promise not to sue the association or the members of the Board for injury or death that occurs at the pool during the swimming lessons. The swim instructor is also required to sign an agreement obligating the instructor to carry a minimum of $1,000,000 of liability insurance and to name the association as an additional insured. The instructor also agrees to indemnify the association and members of the Board against any claims or suits filed against them resulting from use of the pool. Further, an association should also get written confirmation from its own insurance company stating that use of the pool for commercial purposes will not affect coverage.
I recognize that this may seem like a lot of trouble and expense to teach swimming lessons at your neighborhood pool. However, the Board must minimize the potential liability for the association and that can only be done with appropriate releases and insurance.
Question #5: I just moved into a swim-tennis community with my husband and my two teenagers, ages 9 and 11. My husband and I both work. The Association has a swimming pool rule that children 12 and under must be accompanied by an adult when using the pool. I thought an Owner had the right to use the amenities at any time.
Answer: Your question raises several issues that involve the authority of a community association to regulate the use of its amenities.
The amenities are common property, which every Owner has the right to use. That right, however, is not absolute. Community association documents condition the right to use the amenities on the paying of assessments and by giving the Board of Directors the authority to adopt and enforce reasonable rules and regulations which control the use of the common elements. Most Associations have rules and regulations that apply to parking, pets, the swimming pool, and tennis courts.
Tennis court and swimming pool rules typically establish the hours of operation, proper attire, proper behavior, and the age at which a child can use the amenities without adult supervision. The determination of that age is subject to the Fair Housing Act. The 1988 Amendment to the Fair Housing Act made it illegal to discriminate against families with children under the age of 18. While most people know that prevents landlords from refusing to rent to families with children, the Act also prohibits a community association from treating families with children under 18 differently than persons over 18 in the use of the property. The only exception is if the restriction is related to the health, safety, and welfare of the child.
The Department of Housing and Urban Development (HUD) is charged with enforcing the Fair Housing Act. A child’s ability to swim is the primary concern regarding pool safety. There are also health and safety issues associated with a child’s behavior when outside a pool, which requires supervision. HUD has recognized that generally, a child of 12 and under does not have the maturity to take care of themselves. The health, safety, and welfare of the child is at risk without adult supervision.
The Association has the authority to adopt rules and regulations regulating the use of the amenities. That same analysis, however, also means that rules which give preferential times to adults or adult-only swim times are not enforceable because they are not related to protecting a child’s health, safety, and welfare and treat the child differently solely based on age.
Most swimming pool rules and regulations are made to keep your neighbors safe and to ensure the association has limited potential liability, even though some may seem unfair. While the Board of Directors is able to limit the use of common properties, including the swimming pool, and is solely responsible for adopting rules and regulations regarding their use through authorization given in the By-Laws or Declaration, you can always reach out to your Board if you have any concerns or suggestions you would like to see acted upon.