Non-resident giving swiimming lessons in the common area pool

Started by KarenM15 • 35 replies • 3449 views

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KarenM15 (Hawaii)
Posts: 11

Posted:

A couple months ago, a non resident started attending our HOA meetings. He came offering our association a heater for our swimming pool (we live in Hawaii) in exchange for him giving swimming lessons, he also offered 1000.00 a month to rent out a corner of the pool, Mon-Fri 9AM to 6:30PM. Amazingly enough the board granted his request, the heater was installed, the lessons began, NONSTOP, there are usually 5-10 children in one class, sometimes there are two classes going on at the same time. Along with the child taken the class, brothers, sisters cousins also use the pool, and jacuzzi. After the class ends the kids stay and play in my pool for hours. I live about 20 feet away from the pool, the swim instructor has an amazingly loud voice, that does not end until 6:30. I have lost my right to live in a peaceful environment. I pay 740.00 (not a typo) a month for my mainanence fee, I was not informed of this until after the classes started. I am going to a board meeting tonight, I could surely use some advise as to how to proceed. Thanks,

one more thing, I live in Hawaii so classes are available year round. He is making a huge profit.

JohnC46 (South Carolina)
Posts: 14,265

Posted:

Karen

If your HOA pool is rented it becomes subject to all types of rules/regulations.

The latest concern being ADA (handicap access) to mention the big one going around.

If never rented, it is a private pool.

Investigate and gather information, versus speculate.

Hope this helps.

KarenM15 (Hawaii)
Posts: 11

Posted:

Thank you, that is one of the topics I plan on discussing tonight, "if a community rents its facilities to non-residents, it becomes semi-public and must now be ADA compliant". I also plan on mentioning the added wear and tear associated with opening our pool up to the public as well as the added risk of infections from heating a swimming pool in Hawaii during the summer months.

KarenM15 (Hawaii)
Posts: 11

Posted:

I appreciate your reply, but nothing I have mentioned has been speculation, but observations as well as conversations with the nonresident. My resident manager told me about the agreement to rent a corner of the pool out for 1000.00.
Another question I have is in regards to proxys, does this give the board members voting rights for absolutely everything? or are there some situations that would warrent the owners participation in a decision.

NancyG1 (North Carolina)
Posts: 119

Posted:

Karen - Another question to ask your Board is did they check out the Assn Liability insurance. This could be a hugh liability for your Assn. If someone gets hurts or drowns (God forbid) this could cost the Assn a bundle of money even if the Assn has insurance. If the insurance company finds out they could cancel the Assn policy. Did the Assn get a certificate of insurance from the instructor showing he has liability insurance and naming the Assn as an Additional Insured under his policy.

Karen - As a point of interest. This should have been a new discussion topic as it is a different matter. The Assn when they mail out the Proxy should have a cover letter stating what will be discussed at a meeting that will require a vote. Generally it is to elect Directors. If a Proxy is signed over to a Board Director they can vote for that person on all matters if the person does not go to the meeting. If they attend the meeting the Proxy is returned to them when they sign in. If you will go to "Forum Search" and type in Proxy there is a lot of prior information regarding this topic.

Hope this helps.

NancyG1 (North Carolina)
Posts: 119

Posted:

Karen just to add. Get other homeowners to help you. Maybe get up a petition. It is very difficult to fight this alone. Also, is your Assn a non-profit. If they are being paid rent, find out what it is doing to your year end tax return. Ask the Board or Management Company for an accounting of where this money is going. However, the big concern is liability.

LeeM5 (Hawaii)
Posts: 3

Posted:

Thank you so much for the information, Im not sure if my association is non profit. I was told that the money was going to delay yet another mainatanence fee increase, but when you break it down, the 1000.00 dollar a month rent would offset an increase of less than 9 dollars per unit. I attended the meeting, I discussed how we could be considered public and therefore need to be ADA compliant, the board told me that we would not be subject to the ADA rules because the rental agreement was not permanent. I asked how long there contract was and was told they dont have one. I asked about insurance, they said that the guy had insurance, and that we would not be liable. The board said it took six months for them to come up with the decision, but at no time in that six month period was any of the owners informed of the situation. As this meeting was taking place, the two swim instructers were waiting by the pool, I was given a curt thank you for your opinion and pretty much dismissed. After I left, the non resident swim instructers joined the meeting.
There must be something I can do, just not sure what. Karen

LeeM5 (Hawaii)
Posts: 3

Posted:

Quote:

Posted By LeeM5 on 07/18/2012 1:02 AM
Thank you so much for the information, Im not sure if my association is non profit. I was told that the money was going to delay yet another fee increase, but when you break it down, the 1000.00 dollar a month rent would offset an increase of less than 9 dollars per unit. I attended the meeting, I discussed how we could be considered public and therefore need to be ADA compliant, the board told me that the ADA rules would not be applicable because the rental agreement was not permanent. When I asked about their contract, I was told there wasnt a contract. I asked about insurance, they said that the guy had insurance, and that we would not be liable. The board said it took six months for them to come up with the decision, but at no time in that six month period was any of the owners informed of the situation.
As this meeting was taking place, the two swim teachers were waiting by the pool, after i was given a curt thank you and dismissed, they joined the meeting.
There must be something I can do, just not sure what. Karen

TimB4 (Tennessee)
Posts: 21,059

Posted:

If you care to share, let us know how the meeting went.

TimB4 (Tennessee)
Posts: 21,059

Posted:

Dang lack of edit. I see you did share.

NancyG1 (North Carolina)
Posts: 119

Posted:

Lee - Unfortunately what happened at the meeting is typical. A Board is elected and the homeowners believes they will do the best for the Assn but sometimes they don't think things through and when told about it it doesn't make any difference because they have made their decision. The Board is probably thinking about the money. You could check with your town, city or county for their ordinances and see if they have anything for noise or nuisance. They may be able to help you. Now, take it to the homeowners. Discuss it with everyone you meet. Think about getting a petition going. It's going to be difficult to fight them by yourself. I know in NC the last step would be Court. Of course, this will cost you. If you go to a lawyer and get them to check it all out and write a letter to the Board it will cost you. It depends on how far you want to take this. When time comes to vote for new Directors try to vote them out. At the annual meeting bring it up when most of the homeowners are there. Make sure you have all your facts right. Good luck.

NancyG1 (North Carolina)
Posts: 119

Posted:

Karen I'm sorry in my last message I put Lees name instead of yours. Must be to early.

TimB4 (Tennessee)
Posts: 21,059

Posted:

Karen/Lee,

If there is no written contract/agreement, then it's a month to month lease and can be terminated with 30 days notice.

I hope your Association sought a legal opinion on the ADA compliance issue. As failure to do so could become an issue.

Even if the instructor carries insurance, if something happened (and let us hope it never will), it's likely that the Association will be named in the legal action because they own the pool. Even if a court determines that the Association has no liability, there will be legal costs incurred by the Association to defend itself to that point.

The only other options you have is to vote the bums out at the next election or recall them.

Start with gathering support of the other members and explain your concerns. As a group, ask the Board if they sought legal opinions about the ADA requirement, the determination if the pool is considered public and the liability risk for the membership. Additionally ask if they sought advice from the insurance carrier on what, if any, additional coverage is needed. Explain that the amount of the lease (1K/month or 12K/year)is only a difference of $9 per month in assessment (your figures)and the increased risk for that low of an increase likely isn't worth it.

One lone voice isn't always paid attention to (even if it should be). You need to gather support (I'm thinking 25% as a minimum) and bring it up again. At the very least, gather your facts and have them ready for the general membership meeting.

Tim

CarolR11 (Colorado)
Posts: 2,563

Posted:

I'll add to Tim & Nancy: urge others to join you in ending this arrangement. Your documents like ours probably state that residents have the right to peaceful enjoyment of their units as you mentioned in your O.P.

Peaceful enjoyment and liability might be the two major pegs on which to hang your argument.

And if it were me, I'd want to see the attorney's opinion in writing and your ins. agent's opinion in writing. Do not accept the board's oral assurances.

BrianB10 (North Carolina)
Posts: 24

Posted:

Check your docs again and see if there is a clause in there that only gives the Board the right to encumber a portion of the common element with 100% of the homeowners agreeing. Some of the complexes I managed had such language. If you have such language you have them, because they have most definitely encumbered part of the common element and sounds like there is no way 100% of the homeowners agree with their actions. As for the ADA compliance, I think your Board is wrong and would suggest that you ask them to produce a document from the association's attorney that says otherwise.

NancyG1 (North Carolina)
Posts: 119

Posted:

Tim your 3rd paragraph. This is why I told Karen to check and see if the Board asked for a certificate of insurance from the instructor. If he adds the Association as an additional insured if something happened the Association would be covered under his policy. It is an endorsement that can be added to the instructors liability policy.

KarenM15 (Hawaii)
Posts: 11

Posted:

Lee is my husband, I corrected his post. No worries.

KarenM15 (Hawaii)
Posts: 11

Posted:

Quote:

Posted By NancyG1 on 07/18/2012 3:17 AM
Karen I'm sorry in my last message I put Lees name instead of yours. Must be to early.

still very new at blogging, Lee is my husband, I corrected his mistakes. no worries.

KarenM15 (Hawaii)
Posts: 11

Posted:

I apologize in advance if what I'm about to ask is something everyone already knows, but here goes: How do I ask to see the minutes and the documentation confirming what I was told at the meeting? Can I contact the HOA insurance company and ask if they have been informed? or would that be shooting myself in the foot.

TimB4 (Tennessee)
Posts: 21,059

Posted:

You must request to review the documents from your board or your management company.

You are not a client of the insurance company so they will likely not respond to your request. The Association is the client and the Board of Directors are the governing body/executive organ that directs the wishes of the Association.

JohnC46 (South Carolina)
Posts: 14,265

Posted:

Karen

Most minutes contain nothing more then motions, votes, etc. They contain little to no verbage so if looking for say a discussion that took place, I doubt it will be there.

Some do audio and/or video record the meetings and will offer copies of such for a minor cost.

I suggest you write an "open" letter to the BOD listing your concerns and raising question about ADA, liability, income/taxing, etc. I would also distribute copies of this letter to fellow owners.

I would not be antagnostic and I would phrase things more like questions that concern you, not accusations. Like:

I have read about swimming pools having to come under ADA compliance when open to the public. Has this been looked into?

I have concerns about liability insurance if there is an injury or worse to one of the participants. Has this been looked into?

I have concerns that the rental fee could be considered income for taxing purposes. Has this been looked into?

Publically put them on the defense. Make them answer questions.

Rally your fellow neighbors. If push comes to shove then ask other owners who do not like the idea (like myself) to contribute some money so you all can get get a legal opinion then present this opinion to all and anybody.

Hope this helps.

KarenM15 (Hawaii)
Posts: 11

Posted:

thank you for all the suggestions, the next board meeting is not until September. The board consists of 9 members representing 140 units. I plan on putting a petition together asking my neighbors how they feel regarding the pool situation. Unfortunately, I have the feeling that it doesn't matter. the board members made a decision whether we knew what the issue was or not. I think my next approach will be to offer solutions, possibly cutting the hours from 5 days a week from 9AM to 6.30PM to 2 days a week Tues and Thurs only. Something like that. I welcome any advice. Thanks, Karen

CarolR11 (Colorado)
Posts: 2,563

Posted:

Karen, you do want to see the meeting minutes to read what the motion or motions were and what, exactly, is the agreement with the swim teacher. I should think that there's a signed written agreement between him and the board. Does it state that kids can stay after the lessons, that their sibs may use your pool, etc?

With your high monthlies, are you a high rise? Lots of residents have views of the pool?

Why are there nine directors for such a (relatively) small HOA? Are you self-managed?

JohnC46 (South Carolina)
Posts: 14,265

Posted:

Karen

Once you concede on things like hours, days, etc., you are agreeing with what they are doing.

I say what with ADA and insurance issues, they should not be doing it at all and they are burying their heads in the sand for $12K a year.

Give them an inch, and they will take a mile.

KellyM3 (North Carolina)
Posts: 2,239

Posted:

I'll bet the HOA board wasn't thinking about ADA compliance triggers in renting the pool for private swimming lessons, though "private lessons" equate to public access.

John from SC is correct.

KarenM15 (Hawaii)
Posts: 11

Posted:

I asked the board if they were aware of the ADA compliant rule, I was told that since this arrangement was not permanent, we would not be subject to the ADA rules. They told me they checked with our lawyers. anybody ever hear of that?

KarenM15 (Hawaii)
Posts: 11

Posted:

I completely agree with you. I see you posted a very informative write up on ADA, my board told me that since this agreement was not permanent, we would not be subject to the ADA rules. What do you think?

LeeM5 (Hawaii)
Posts: 3

Posted:

For anyone who is curious as to what the board decided after my complaint, Here is a partial response:

"The Board decided to continue the swimming classes for another 2 months on a probationary basis, to evaluate whether the swimming school can satisfactorily resolve the problems that have been brought to the Board’s attention. Some of the factors that impacted the Board’s decision were as follows

The school has provided a pool heater, to which a large number of residents have favorably responded.

- The school is currently performing ALL maintenance of the pool (monitored by the resident manager to ensure it is being done.)

- The school is providing a lifeguard – an asset that the Association has never had in the past.

- A fairly large number of residents in the area of the pool have signed a statement, indicating that they approve of the school and the pool heater." End

I want to focus on the last sentance, out of 140 townhouses, there are 20 homes in the pool area, I happened to be the second closest house to the pool (I was not asked), the house closest to the pool was not asked but when he found out about it, he was livid. One other homeowner has also complained. Can the board choose who they want to query? This doesnt feel right and is not fair.
As far as a lifeguard, i have never seen a lifeguard at the pool, unless one of the three instructers happens to be a certified lifeguard. there is more. I wanted to get some opinions about this lame response. Thanks, Karen

NancyG3 (North Carolina)
Posts: 342

Posted:

Lee: Do you know if your Board obtained an insurance certificate from the school showing they have a million dollar coverage and named your Assn as an additional insured? This to me would be a major concern. Write your Board and ask if the school is providing the insurance coverage. Let's see what they say. In your last post I didn't see this mentioned. This should be a big concern to your Board and the Assn.

NancyG3 (North Carolina)
Posts: 342

Posted:

"Can the board choose who they want to query?"

I have come to believe a Board can do whatever they want. There are good Boards that do consider all the members of the Assn, however, there are a lot that do whatever they wish without fully considering all the dangers. There is nobody watching them. The only thing a homeowner can do is vote them out. I could write a book about ours.

ShirleyC (California)
Posts: 117

Posted:

This is wrong on all levels........I would write a letter to the board inquiring about the insurance and cc to the insurance company. If someone gets hurt or drowns a million dollars isn't going to cover it and then the owners could be responsible.

JimD15 (Florida)
Posts: 21

Posted:

I agree with Shirley. If it were my community, I would look into all avenues as to find a way to stop this including removal of board members. Anyone can sue anyone regardless and the costs the community would incur defending the board's decision would be great.

KarenM15 (Hawaii)
Posts: 11

Posted:

I asked about insurance at the meeting, yes, they have insurance. But during the long conversation, the board mentioned that our insurance would be able to cover any claims against us.
The response from the board also recommended that I keep monitoring the situation to make sure the school is following the agreement (the same one they have already broken, after just three months)

KarenM15 (Hawaii)
Posts: 11

Posted:

things just got a bit more interesting. Here is some background. Last year, my husband had to work out a payment plan, we fell behind a couple times. We are current now and have lived here for 12 years. As a reminder our maintenance fee is 740.00 per month. Does not include utilities. Not even cable.

A couple minutes ago I received this email:

"I know this is frustrating for you, but in light of the fact that the Board has gone well out of its way to allow you and Lee to make up your maintenance fee delinquency via a very liberal payment plan – an agreement that the Board was in no way obligated to commit itself, I don’t think it is too much to ask for your continued patience while the Board tries to work this situation out."

this seems threatening to me.

In response to the solicitations:
"When the Board heard that 2 owners were expressing concerns about the pool, one of the Board members inquired (not solicited) as to other residents opinions about this endeavor. Obviously, he did not inquire with you, since you were one of the 2 owners that complained – so he already knew your feelings on the matter. As a result of his inquiry, a large majority of the owners expressed a positive opinion of the operation."

the first email mentioned signed statements.

Regarding my request for information:

"I am only passing along the Board’s decision, but I am not prepared to get involved in a running debate on the matter. The Board has done it’s research and is comfortable with the insurance/ liability/ legal questions."

JohnC46 (South Carolina)
Posts: 14,265

Posted:

Karen

I think the bit about we helped you (payments) so be quiet is a low blow.

I think that if only two of you have raised an issue and the BOD assures you that they have covered all their bases (insurance, legally, ADA, etc.) might could mean that while you are not wrong, they have covered all their bases and you might want to consider dropping the issue.

Also if I recall one of your reasons to object was you live adjacent to the pool and noise might be more of a personal issue, and a valid one, it is not s deciding factor to others.

Overall I do not like the idea of renting the pool but if the BOD assuaged my fears, I might consider dropping the issue.

Hope this helps.

NancyG3 (North Carolina)
Posts: 342

Posted:

Karen- I agree with John. I'm not sure about the insurance answer you received from the Board. However, it is a long battle you will have with your Board. You have to decide if all this is worth the aggravation. Maybe wait the 2 months then if they haven't done anything and there is no improvement bring it up again. Not sure I would write the Board and send a copy to the insurance agency/company. If you did it would really create an uproar. Just wait and see what the Board does.

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