Pool Liabilty

Started by DrewM • 14 replies • 1644 views

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DrewM (Delaware)
Posts: 9

Posted:

Hi Everyone,

I live in the state of DE. Our HOA restriction allows homeowners to install pools but does not allow the homeowner to pick what type of fence they want to protect the yard.

The allowable fence style is not what all members feel is "substantial" enough for protection.

Two attorneys have recommended that our HOA create a restriction tailored for yards with pools but our restrictions committee and BOD have done nothing for over two years.

My question is, if the HOA dictates the fence to be installed around a pool, is the HOA responsible or liable if someone or something gets around the fence and is injured? I would think by allowing the homeowner to choose the fence, maybe the liability would be lifted from the HOA?

Any thoughts?

BradP (Kansas)
Posts: 2,640

Posted:

Drew:

I think you have answered your own question, if two attorney's are recommending tougher standards then yes I do think it puts your association at risk in the unfortunate event something were to happen.

BradD2 (Florida)
Posts: 418

Posted:

Something else to consider. Ignorance is a weak defense, but you don't even have that any more. If you were encouraged to do something for a safety reason and have not, that will come out in a trial and be a slam dunk for an attorney.

JulieS (Georgia)
Posts: 412

Posted:

What are your city, county or state codes regarding the fence requirements for pools? If these were tougher than the HOA standards, they would override the HOA.

GloriaM (North Carolina)
Posts: 829

Posted:

Drew:

Make sure that your CCR's do not state that a privacy fence is allowed around a deck, patio or pool. Although perimeter fences around the entire yard may only allow for split rail, picket or shadowbox as an example, some governing docs do allow for a privacy fence around pools, deck or patio.

JanM (Texas)
Posts: 142

Posted:

I would think that the homeowner with the pool would be covered by their own insurance and would check with them first, after all, it is private property.

BradP (Kansas)
Posts: 2,640

Posted:

Jan:

I disagree, if I want to put in a more secure fence and two attorneys suggest to the HOA that they change standards to allow sturdier structures, then as a homeowner if something happened and we end up in court I am citing that as a reason why this happened. Blame will get shifted to the HOA because of negligence in my opinion. The homeowner may still share some of it, but the HOA will have some as well.

DrewM (Delaware)
Posts: 9

Posted:

Hi All,

These are great responses....keep them coming :-)

Our restrictions do allow for privacy fences around decks, but not around a pool or a yard.

This home that had the fence request "tabled" and was never denied or approved to put up this fence backs up to another community where many children live. They have proof of children walking, riding bikes and skateboards on their property. All of this was raised to the BOD but yet they did ignore the request.

Our county code states that many styles of fencing is approved for pools.

I agree that the homeowners insurance should cover it, but if I was an insurance company and the fence that someone dictated was not substantial enough and letters of proof exist that the BOD was told to change the restriction for safety reasons and didn't, I would turn around and sue the HOA.

Thanks All !

BradP (Kansas)
Posts: 2,640

Posted:

Drew:

If I understand you they did put in a request for a fence and the request was not denied? A lot of associations have a clause in their documents that gives the architectural committee a certain amount of days to respond, if they don't respond in that time frame it is approved by default. Ours is 30 days.

If I am reading you right they submitted a request that was tabled and not responded to a long time ago, to me it should be approved by default because of your board's lack of action. Check your docs.

DrewM (Delaware)
Posts: 9

Posted:

Hi Brad,

I have checked the form, the bi-laws and the restrictins and nothing states approval by default after 30 days. The form actual says nothing.

This homes request was "tabled" by our BOD back in October of 2005. We have had Board Member changes since then and everyone is still aware of this request and and yet nothing has been sent to the homeowner concerning this "tabled" request.

It is all a little crazy to me :-)

BradP (Kansas)
Posts: 2,640

Posted:

Drew:

Maybe Roger can speak to this, he is a lot smarter than me, but over 18 months it would seem to me they need to either approve or disapprove with reasons. I think it could be argued that the board has had sufficient time to review and their lack of a response constitutes a default acceptance.

RogerB (Colorado)
Posts: 5,067

Posted:

If I were Drew I would send a request which included the detailed plans to the Architectural Committee (use their form when available). I would attach a copy of the previous request; the information provided by the two attorneys; and any fencing information which will aid them in approving your pool fence request. If there is no deadline for their approval (badly written), I would clearly state something like "If no response to this request is received within 30 days please be advised this shall be deemed approval by default and work would be begin promptly as per the submitted plans." Send two copies - first class and RRR.

DrewM (Delaware)
Posts: 9

Posted:

Thanks Roger,

The problem we have now is the homeowner is very upset. They gave the BOD a deadline that they needed an approval or a denial by back in October of 2005 becuase they had deadlines to purchase a fence. When the BOD never did respond, they were forced to install something.

If this homeowner turns around now 15 months later and requests the varince a third time to the board and they deny it, the homeowner will NEVER take the fence down.

last Saturday, 26 out of 50 homes in our communty expressed in a vote that they dont care about the fence, they feel it should be grandfathered and they would not want to sue this family. This whole situation is very crazy and I honestly feel this homeowner was treated unfairly and discriminated against.

RogerB (Colorado)
Posts: 5,067

Posted:

Drew, I did not realize the fence had been installed, perhaps it was implied or I missed it. So the real question is - should the HOA take the owner to court? My answer is absolutely not unless they have proof of providing a written denial to the owner's request. I seriously doubt the CC&Rs state that no fence may be installed around a swimming pool. And the owner has a safety issue which they had to resolve. Although I would hope they contacted the Board more than once to get an answer prior to installing the fence.

If the Board is planning court action, I would get up a petition to call a special members meeting to stop it. Owner's need to be made aware that it could cost them dearly. They could end up paying for all legal costs for both the HOA and the homeowner.

DrewM (Delaware)
Posts: 9

Posted:

Thanks Roger,

Yes, the fence was installed after the BOD sent this homeowner a letter stating they would not make a decision on granting a variance. I have the request and the letter and the BOD ignored the homeowner’s deadline and tabled the decision EVEN THOUGH they DID grant two previous homeowners a variance for the exact same security reasons.

Our restrictions does allow for a fence to be installed, but nothing strictly for pools. Split rail with chicken wire was all that was allowed but the homeowners, two attorneys and the homeowners insurance companies felt it was not secure enough for a pool and some variances were granted but this one was not.

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