Reader Questions - Swimming Pools

Dear Mr. Richardson,

Our Board permits use of our pool by a non-profit swim team organization of which non-residents comprise approximately half of members. Swim team members pay for membership but a portion of such dues does not contribute to pool maintenance and the Association cannot charge them for same. Is it proper to subsidize the use of our pool by non-residents?

It appears that our pool has become a public one. Our ability to use our pool has been restricted on most weekdays and during the day on some Saturdays in summer months. Our concerns have been presented to the Board with no effect. Do we have any viable options to stop the use of our pool by non-residents?

Thanks,

D.B., Irvine

Dear D.B.,

Your association board normally has the responsibility to determine who may use association facilities, subject to direction from the governing documents. Although half of the swim team members are not residents, the other half are. If this is a significant community amenity for your neighbors, the directors must balance the use of the pool by the team against the use by non-team families.

Under state and federal laws, HOA pools are “public,” at least regarding the applicability of safety standards. For example, the federal Virginia Graeme Baker Act (2007), regarding pool drain safety devices, calls HOA pools “public”, (Title 15 U.S.C. 8003). Some state safety laws declare HOA pools to be “public” for the purpose of the particular law or regulation – Health and Safety Code Sections 116049.1 and 116064.2, and California Code of Regulations Title 22 Chapter 20 (Section 65503). The definition of HOA pools as “public” does not mean that your HOA must open them up to anybody who wishes to swim, but it does mean HOA boards must pay attention to many pool safety laws.

However, for purposes other than safety requirements, I doubt your pool as you describe it is truly “public”.

As to forcing your board to drop the swim league, are you sure you want to push that? Fellow members who are parents of swim team kids may think differently. The board’s role is to make decisions about common area and HOA amenities, but if the HOA members desire more permanent pool policies, or a ban on non-resident use of HOA amenities, consider amending your HOA’s CC&Rs or rules.

Best,
Kelly

Dear Kelly,

We have four swimming pools in our HOA. Can we legally have one of them as an adult pool for age 21 and older?

Appreciate your comments,

E.F.

Dear E.F.,

Ordinarily, unless your HOA is a designated age-restricted (i.e., senior) community, your board cannot restrict the rights of younger people to enjoy HOA amenities. This would be a violation of the Unruh Act, California’s anti-discrimination law.

However, if there is a case from 1987, Sunrise Country Club v. Proud, in which a large HOA had 21 swimming pools, and allocated some for families and some as “adults only”. The trial court, and subsequently the appeals court, upheld the allocation of amenities in that way. So, if your association has many pools, and only establishes a reasonable fraction of them as “adults only”, it might be OK. Otherwise, consider settling up some “lap swim only” times – but don’t do it in a way which is a disguised ban on families.

Thanks for your question,
Kelly

Written by Kelly G. Richardson

Kelly G. Richardson Esq., CCAL, is a Fellow of the College of Community Association Lawyers and a Partner of Richardson | Ober | DeNichilo LLP, a California law firm known for community association advice. Submit questions to [email protected]. Past columns at www.hoahomefront.com. All rights reserved®.