Welcome to the Pool
One of the first amenities that are built by developers of planned subdivisions and condominiums in North Carolina is the neighborhood pool. Pools are an attractive addition to a subdivision and developers and owners see them not only as a great place to socialize with neighbors and entertain the kids, but to enhance the value of their property.
Typically the pool is a "common element" of a subdivision and is owned by the Homeowner's Association. The HOA and its Board of Directors has the responsibility to maintain the pool and ensure the safety of the users.Over 3,000 people in the United States drown unintentionally every year. More than 1 in 4 fatal drowning victims are children 14 and younger, and for every child that dies, another 3 receive emergency-department care for submersion injuries. Of those receiving emergency care, 40% require hospitalization. In fact, drowning is the leading cause of accidental death among small children (1 to 4 years of age) and the second leading cause of death (after motor vehicle accidents) among children 1 to 14 years old. Unfortunately, inadequate safety measures play a part in too many drowning and near-drowning cases every year. In the cases of drowning at public pools, typical hazards include inadequate supervision, failure to use proper procedures to save a drowning victim and a lack of the safety equipment required to save a drowning victim and access gates that do not meet code or are not functioning properly. In North Carolina, an HOA's pool is classified as a "public pool" despite any limitation to homeowners and their guests. As such, the pool should have been constructed in accordance with the North Carolina statutes and building codes. In addition, the pool should be inspected once a year if open seasonally and twice a year is open year round. Part of this inspection includes making sure that all the required safety equipment such as fencing, emergency telephones, and lifesaving equipment is present. A qualified and licensed pool company should be retained by the HOA to maintain the pool and prepare for the inspection. If the required safety measures have not been taken, serious injury can result and the HOA would be liable for negligence.
Use of the the pool can and should be restricted to homeonwers and their guests. Use of the pool by others without permission would be a trespass. Trespassers should be asked to leave or notify the police. If the trespassers damage the pool or other common area, they can be sued for the damages.
Use of the pool by homeowners and their guests is a privilege and therefore, can be suspended under Chapter 47F of the North Carolina General Statutes if the homeowner is in violation of the rules and regulations of the HOA or has not paid their dues. The procedure for suspension of privileges should be in the declarations. If not, Chapter 47F-3-107.1 provides a procedure. Basically, a homeowner is entitled to a hearing before the Board or their representatives before the privileges are removed.
–Bradley A. Coxe is a practicing attorney in Wilmington, NC with Hodges & Coxe PC who specializes in Personal Injury, Medical Malpractice, Homeowner's Associations, Contract and Real Estate disputes and all forms of Civil Litigation. Please contact him at (910) 772-1678.