enforcing pond rules

Our LOA has a small lake available for all residents and their guests to enjoy. The land around and under the lake is private land owned by landowners, with the exception of a small beach common area where residents can enter the lake for recreation. There is a 25ft easement around the lake and all landowners are allowed access to this easement for walking and fishing only (not to be used to enter the lake for swimming or boating).

A few years ago Lake Rules were implemented by the board, we (I am a board member)just updated these rules. One of the rules states that "Children under the age of 13 must be supervised at all times by a parent or guardian 18 years of age or over." This language was changed slightly from the original language changing the age to be supervised from 16 to 13, this was in response to our attorney's recommendation and attention to recent political influences regarding "family discrimination" issues.

Recently two children were playing in the water on the one of the easement beaches on land that is owned by their parents. These children were given permission to play and swim in front of their property by their parents. A director approached the children and advised them that they could not be in the water unsupervised.

The children's parents were very upset by this occurrence. They wrote that they were aware of the lake rules but they believed that since their children were excellent swimmers, and that they are 11 years old, they should be allowed to swim in front of their own land because they were given permission by their parents.

This is a tough call, but I believe, as a number of others on the board, an apology is order, not to say that the director was in the "wrong" but to say that the board apologizes for any distress this situation caused the family, also I believe we should state that the director was only looking out for the children's safety and did not realize they were on their own land. Additionally I believe we should allow these children to be allowed to swim in this area since this land is actually owned by the landowners (state specifically the child can swim on the easement in front of their property if the parents permit this.) We have big push back on this concept now, although it was agreed to at the last meeting, and now we are rehashing this issue via email. Time is passing and the angry landowners expected a response from the board after the last meeting which was 2 weeks ago. Not only are a couple of directors opposed to the concept of allowing these children to swim on their own land they do not want to apologize for enforcing the "rules". I am not saying we should apologize for the director doing her "duty", but I do think we should acknowledge that the board is sorry we caused distress this incident caused this family however well intentioned the director was by her behavior. Additionally I am concerned that we may be caught in the trap of "treating children differently" which was a warning by our attorney in a recent law seminar I attended.

The CC&Rs State "Except as permitted by owners of lots adjoining the lake swimming boating and other entry to the water shall only be from the recreational easement at the east end of the dam". Part of the problem is that some of the "recreational easement" is on these landowner's land, and this is where the children were playing. Basically the question is should we as directors make the landowners who own the land abide by the "Lake Rules" or can the board grant special allowances due to this unusual issue?

There are no Lake rules regarding this issue in the CC&RS and when the Lake rules were originally written our attorney recommended these rules be "guidelines". It should be noted that there is a "swim at your own risk no lifeguard on duty" sign posted at the lake.

Thanks for your help! Sorry for the long posting! Robin

Robin,

Unless your association is prepared to post someone at the pond 24/7 to enforce your rules/guidelines, you might as well not have any rules. You are trying to control the use of property you do not own. You already have a sign warning that there is no lifeguard on duty and that should be sufficient.

I think I missed the main point: Should children under age of 13 be allowed to swim in the lake unsupervised?

The LOA attorney essentially said the Board could only issue guidelines. Have the Board apologize. Make it clear within the text of these guidelines (not rules) that they are only guidelines. Guidelines are not enforceable. The board should stop trying to enforce them. The good news is that this becomes one less thing on the board's plate.

I agree with this rather than get the HOA involved as the OP seems to want to do. The OP should take the lawyer's advice and be done with it.

Respectfully the documents would be best personally reviewed to establish if they support Robin L7's description.

She posted that at the time of Director's comments the 11 year old children were physically swimming but within what she describes as an "easement". That term has a broad range of possibilities in her case, but she may mean an underwater offshore body of privileges enjoyed with ownership of each specific adjacent corresponding offshore private property. Did the 'swimming' technically comply with such as long as the other requirements are met : walking & fishing only without entry into the pond water to swim ? ( Her description of the parents' objection seems to centre on their thinking their 11 year olds are mature enough to swim alone there, rather than challenging i principle the 'Rule-making' scope of Robin L7's association. Should all 11 year olds swim unsupervised without restriction ? )

Her association has created what she described as Rules purporting to regulate pond usage - subject to whatever exceptions - like any other common element scenario. Some warning signage has been posted eg no lifeguards. An occupier or responsible authority might want to TRY to impose limits on its legal risk exposure, to warn of dangers etc.

If it chooses NOT to do so, it gets the default setting. And injured users may get to argue 'We should have had a posted warning' from the association . . . .