4 Tips to Avoid Swimming Pool Tragedies and Liability

by | BiggerPockets.com

This article does not constitute legal advice. We recommend you seek the counsel of an attorney familiar with your specific situation and market to ensure you make the best decisions within your real estate business.

When I think of the things most people are afraid of, lots of stuff comes to mind: Untimely death of a loved one, heavy objects falling from above, bears, sharks, terrorism, the list goes on. When you ask average people what they’re afraid of, you tend to get responses along those lines. The problem is, most people have fears that are not at all proportionate with their real-life risks.

Many more Americans die from opioids than terrorism (in fact, one recent study puts the body count from the opioid crisis on par with the occurance of a 9/11-level terrorist event—occurring once every three weeks). By the same token, shark attacks kill a fraction of the people annually that swimming pools do. And I’m willing to bet many more of our readers have a medicine cabinet or a swimming pool right now than have ever been anywhere near a terrorist or a deadly shark.

The truth isn’t always comforting, but it’s the truth. You’re way more likely to die from the things around you. Most of us own or at least ride in cars—so the odds are substantially higher that we’ll die from a car accident than some type of bear encounter gone horribly wrong. The same is true for those of us investors that own pools, only the risk is magnified. The wonderful world of liability means that even if you’re not personally at risk of drowning in your own swimming pool, you could still be at risk of losing everything if someone (and we mean literally anyone does). But don’t slam your hand down on the panic button just yet: there are ways to own property with a pool and minimize your liability / lawsuit risk.

Related: 6 Smart Strategies for Limiting Liability as a Landlord

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Landlords with Pools: You are Responsible for Whatever Happens

We’re not here to trash swimming pools altogether. They’re attractive on properties, and renters actually look for them because above all else, they’re fun. But the reality is, there’s very little fun you can have in this world without risk. You must be aware that just like you’re responsible for the housing you are rent out, you are equally responsible for the pool.

Because you’re a smart investor, and a swimming pool is an investment, we assume you’re going to be willing to do what you need to do to protect that investment. The reality is, there are two primary ways things can go really wrong for you as an owner of a property with a pool.

•Your Pool Violates Local Laws
Every jurisdiction has local safety laws governing how pools must function—and possibly how they should look. You need to be in 100 percent compliance with these laws, or you could end up on the receiving end of a gnarly law suit. When you’re in violation of local laws, any little injury from a slip on up to a drowning death is considered your fault because of a concept known as strict liability.

•Your Pool is Declared Unsafe
This has less to do with following the law to a T, and more to do with common-sense safety standards. For instance, if the markers on your pool read “3 feet” but the pool is actually thirty feet deep, your pool could easily be deemed unsafe. In this case, it may also be in violation of local law—but the point is that it’s an obvious safety hazard.

Swimming Pool Horror Stories & Liability Law

Now that we’ve established the two ways pool owners are at risk, here are a couple of examples about how these types of suits often go down.

Horror Story 1: Violation of Law Meets Dimwit

At your hot rental property in West Filthy Rich Beach, Florida, your tenants are tying one on for the 4th of July. All is well: friends are over, the barbecue is going, and the booze is flowing freely. They’re enjoying gathering around the 15-feet-deep pool and getting their feet wet. The crowd is growing. The two tenants had originally invited a few other couples over to hang out, and one of those guests brought a tag-along guest whom we’ll call “Dim Danny.” Dim Danny decides the time has come to do a kegstand on the diving board. Despite protests from your tenants, Danny goes to town and turns your diving board into some justifiably deleted scene from American Pie, then promptly tumbles over and falls into the pool, busting his lip on the way down and breaking his wrist as he drunkenly fails to protect himself.

Here’s where you could be screwed as a matter of law. West Filthy Rich Beach is a made-up place, but because local laws can be downright silly, let’s just pretend that there’s a law on the books there that regulates diving boards to permit them only for pools with more than 40 feet of depth. It doesn’t matter if you inherited the diving board from a previous owner. You’re caught in the sticky legal spiderweb of strict liability. That means that even though you didn’t install the diving board and Danny was being a total dumbass, you’re still on the hook.

Now the law in this state (in reality) requires your pool be kept in “reasonably safe conditions” for anyone invited over, even by the tenant. The reason or occasion doesn’t matter. Even though you didn’t invite Dim Danny over to the pool, the injuries are still on you.

Horror Story 2: Straight-Up Unsafe Pool Meets Danger Baby

You were happy to rent out your duplex in Austin, Texas to a young family. The property has a pool that varies in depth from 12 to 15 feet. Your tenants, a married couple, happen to have two children: an 8-year-old and a toddler. They’re decent people, and they’ve even been taking their oldest to swimming lessons.

The family decides to break in the pool on their second weekend in the home. Both children are slathered in sunscreen, and the little one is given water wings for good measure.

Mom reads the pool markings for the first time, and feels it’s safe to place the toddler in the section labeled 12”. After all, twelve inches is barely any water, and the kid has floaties on. The 8-year-old happily dives in the deep end and takes a lap. As Mom is checking to see if Dad is joining in on the fun, the toddler starts to struggle to stay afloat. And so far, he’s the only one who knows that the water is 12 feet deep, not 12 inches. The only difference in the signage is an apostrophe, and Mom didn’t think to question it. To make matters worse, the water wings aren’t fully inflated, so Danger Baby begins to sink until his head is partially submerged.

Related: Should You Invest in Homes with a Pool?

Fortunately, Mom is vigilant enough to see her little one starting to sink, and fishes him out of the water, but not before he’s managed to breathe some of it in. She calls an ambulance and he’s rushed to the emergency room.

The baby is fine, but you’re immediately hit up to pay the costly ER bill. And given the way the markings on the pool were misleading in a way that a judge would deem unsafe, you could absolutely be on the hook.

Learn more about protecting your pool from the Dim Dannys and Danger Babies of the world in the next segment.

4 Tips for All Pool Owners

1. Understand your potential liability.

You’re on the right track if you’re reading this article. Generally speaking, as long as you follow these recommendations, you’ll be safer than if you don’t. Of course, if you’re concerned about your specific situation with your specific pool, speak to an attorney about what you can do. These are just guidelines from one reasonable person to another. You’ll see this language come up in law a lot: “reasonable person.” The short version is simply that if you take the precautions that a reasonable person should, you’re not likely to be found “negligent” by a court. Now that you know your pool may be a death trap, hopefully you’ll be motivated to protect yourself from a costly liability suit.

2. Know your local laws and get up to code.

I recommend Googling or calling a qualified attorney in your jurisdiction. A quick search will get you on the right track, and you can confirm the details with any specialists you may hire to take care of the problem(s). If you’re not willing (or able) to bring the pool up to code, you have no business renting the property until you do. An unsafe pool is akin to a death trap, especially for minors and drunken idiots. Simply bringing your pool up to code would have gotten you out of the strict liability situation from the example with Dimwit Danny. Even if Dimwit had done his kegstand elsewhere and sustained the same injuries, you wouldn’t have been responsible because you’d have done your due diligence as a landlord.

3. Be a little paranoid.

Even if there’s no law requiring you to cover your pool, do it. Just use good common sense here for preventing accidents. You can go all-out and hire a lifeguard (or encourage tenants to do so), but usually just requiring the tenant to supervise, or account for the supervision of anyone in the pool, should be enough. Since you’re already taking the time to bulletproof your investment, brighten up and clarify the markings, add some type of protective fence or gate to the area surrounding the pool, and make sure you have a waiver in place like the one described below. Any additional signage for your safety can help reinforce this. Installing pool alarms is a good idea if there’s any chance there will be children living on or near the property. These actions would have protected you from the Danger Baby situation.

And as always, make sure your property is thoroughly protected by transferring ownership to an LLC or Series LLC. This will protect you from the absolutely weird scenarios that are harder to predict. We’ve even heard of trespassers trying to sue for hurting themselves in or near a pool. It’s ridiculous, but it does happen.

4. If you’re a landlord, CYA with a good liability waiver.

My practice creates these for clients pretty often. A good waiver or disclosure/pool-use clause can protect you from frivolous tort lawsuits.
Usually, these will include items like:

·        Tenants use the pool at their own risk.

·        Those who cannot swim and/or all children must be supervised.

·        Tenants are responsible for the safety/maintenance of pool equipment and must inform you (the landlord) if anything isn’t functioning properly.

·        Tenants are responsible for supervising ALL guests. That means anyone on the property, invited or not.

As always, I’m available to answer any questions you may have about pools, rental property, asset protection, or anything else you may be curious about.

Now I’d like to hear from you! Are you a pool owner? How have you protected your property? Share your experience (and even your horror stories) in the comments below. 

About Author

Scott Smith

Scott Smith helps clients nationally and internationally from his office in Austin, Texas. With over 5 years experience in the litigation, Scott works on proactively building defense in anticipation of future lawsuits for real estate investors. Scott is one of the few attorneys in the nation that structures companies for maximum protection with minimum taxes.

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2 Comments

  1. Joseph M.

    I have been a LL for over 17 years and there are a few things that I will NEVER buy or allow in my rentals. NO Swimming Pools / Spa’s or hot tubs. NO gym equipment (especially trampolines). NO “water filled furniture” allowed in any of my rentals. NO exotic pets [snakes, venomous insects, pigs, goats…] and I limit “per my insurance” the type of dog that can stay in/outside of the house. IMHO, it is better to be pro-active than reactive.

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