5 Red Flags Your Swimming Pool Rules Need to Be Updated
Summer is approaching, and one of the top priorities for Michigan HOAs and condo associations this time of year is opening up their swimming pools. There are many items to check off the list to get your pool ready for the summer: checking for damage, cleaning the pool, testing the water, inspecting the equipment, getting permits, and so on. An item that may be at the bottom of the list, or not on the list at all, is a review of the community swimming pool rules and signs. While swimming pool rules may appear to be one of the few items where you can “set it and forget it,” as highlighted below, there are at least 5 red flags that may cause a Michigan HOA and condo association to revisit and update their swimming pool rules and signs.
Red Flag #1: Your Rules and Signs Target Children
Many swimming pool rules and signs specifically address children, typically requiring children of a certain age to be accompanied or supervised by an adult while at the swimming pool. Other rules may go further, creating adult swim or quiet swim hours or limiting children and families to certain swimming pools in the communities. 42 USC § 3604(b) and (c) prohibit discrimination against families “in the terms, conditions, or privileges . . . in the provision of services or facilities in connection” with a dwelling and “mak[ing], print[ing], or publish[ing] . . . any notice, statement, or advertisement . . . that indicates any preference, limitation, or discrimination based on . . . familial status . . . .”
Community swimming pool rules that have specifically restricted children in some capacity have been successfully challenged under the Fair Housing Act in various federal courts. For example, a swimming pool rule in California stating that “Children under the age of 18 are not allowed in the pool or pool area at any time unless accompanied by their parents or legal guardian” was struck down as discriminatory. While the reasoning for the rule was to promote pool safety, the court held that this was not an efficient method for doing so because it was possible for younger children to be better swimmers than older adults. Iniestra v Cliff Warren Investments, 886 F Supp 2d 1161 (CD Cal, 2012). In another example, a swimming pool rule allowed each household up to 6 guests, except for teenagers between the ages of 14 and 18, who were only allowed one guest. The basis for this distinction was due to concerns of damage, vandalism, and overcrowding, but the federal court struck this rule down as discriminatory, holding that adults were just as capable of damaging, vandalizing, and overcrowding the swimming pool area as the teenagers. Hill v River Run Homeowners Ass’n, Inc, 438 F Supp 3d 1155 (D Idaho, 2020).
If your swimming pool rules and signs specifically target or restrict children, consider instead drafting uniformly applicable rules that address conduct rather than individuals. For example, Michigan HOA and condo associations can reconsider drafting and implementing rules that emphasize safety, such as no running on the pool deck or near the swimming pool, not swimming alone, taking precautions to keep the pool clean, consider using life jackets or personal flotation devices for younger or inexperienced swimmers, etc.
Red Flag #2: Your Rules and Signs Establish Men’s and Women’s Swim Hours
Some swimming pool rules and signs create men’s and women’s swim hours, with only men permitted to swim in the pool during certain hours of the day and only women permitted to swim in the pool during other hours of the day. Similar to familial discrimination, 42 USC § 3604(b) and (c) prohibit discrimination against individuals “in the provision of services or facilities in connection” with a dwelling on the basis of sex and “mak[ing], print[ing], or publish[ing] . . . any notice, statement, or advertisement . . . that indicates any preference, limitation, or discrimination based on . . . sex . . . .”
In 2019, a federal appellate court struck down a condo association’s swimming pool rules that created men’s and women’s swim hours, which resulted in less than 1/3 of the swimming pool hours available for men and women to swim together and almost no time available in the evenings for women to swim, because the condo association believed that many of the women would be at home during the day and would swim then. In striking down the rules, the appellate court held that “[w]omen with regular-hour jobs thus have little access to the pool during the work week, and the schedule appears to reflect particular assumptions about the roles of men and women.” Curto v A Country Place Condo Ass’n, Inc, 921 F3d 405 (CA 3, 2019).
Red Flag #3: You Don’t Have a Lifeguard
This red flag, unlike the first two, is not contingent on what language is currently in your swimming pool rules but instead on what supervision you are providing at your pool. Whether your Michigan HOA or condo never provides a lifeguard, or this is your first year not having a lifeguard supervising residents while they are in the swimming pool, your swimming pool rules and signs should unambiguously and clearly notify residents that there is no lifeguard on duty and that they will be swimming at their own risk to help reduce liability if there is an accident in the pool.
Red Flag #4: Enforcement of Your Swimming Pool Rules Is Unclear
Your swimming pool rules may be free of potential discrimination concerns and cover all sorts of conduct to ensure everyone enjoys their time at the pool, but who will be responsible for documenting and enforcing violations of the swimming pool rules? And what are the consequences for those who violate the rules?
Whether your community has a lifeguard or not, Michigan HOAs and condos will not want their lifeguards focused on documenting violations of the swimming pool rules for future enforcement by the association (they should be focused on supervising your residents who are in the pool and around the pool area). Therefore, the association will need to decide how violations will be documented and/or reported and verified, such as reporting by other residents to the management company or board, and outline the process for doing so in its swimming pool rules.
The association will also need to detail what happens when the swimming pool rules are violated, such as fines or loss of access to the pool. The potential penalties should be outlined in the swimming pool rules, and the association should review its governing documents to ensure it has the authority to impose them.
Red Flag #5: Enforcement of Your Swimming Pool Rules Is Difficult or Impossible
Linked to Red Flag #4 above, if your community association finds itself struggling to enforce one or more of its swimming pool rules, it should reconsider how it can enforce the rule or, if it simply cannot enforce the rule, remove it from its rules entirely. A Michigan HOA or condo association has an obligation to enforce its rules and regulations, including its swimming pool rules, and it should craft and implement rules that it can and is willing to enforce.
Conclusion
As the summer season kicks off, reviewing your community’s swimming pool rules might not be at the top of your to-do list, but it should be. Outdated or legally problematic pool rules can expose your HOA or condo association to liability, create confusion, or even lead to discrimination claims. By addressing these five red flags, your association can ensure its pool rules are not only clear and enforceable but also compliant with fair housing laws and tailored to promote safety and enjoyment for all residents. If your rules need a refresh, now is the time to act, before the pool is packed and the problems begin.
Need help updating your pool rules or signage? The team at Hirzel Law is here to help.
Kayleigh B. Long is a Member at Hirzel Law, PLC and focuses her practice in the areas of community association law and appellate litigation. Ms. Long obtained her Juris Doctor degree from Indiana University Robert H. McKinney School of Law, where she graduated in the top 5 of her class and served as the Senior Executive Editor on the Indiana Law Review. Ms. Long has been recognized as a Michigan Rising Star in Real Estate Law by Super Lawyers since 2020, an award given to no more than 2.5% of the attorneys in the State of Michigan. Ms. Long has also made numerous presentations on community association law, along with having articles published in the Michigan Real Property Review. She can be reached at (248) 478-1800 or klong@hirzellaw.com.
