Pools can be an enticing amenity for many tenants, and can raise the value of a rental property considerably, but they also come with liability for the landlord. If you own a rental property with a pool or spa/hot tub, you have a legal responsibility to make sure it is safely maintained.
The extent of your liability depends on your relationship to the injured swimmer. Generally, there are three categories with regards to liability:
An invitee is a guest who is allowed to enter the pool premises for social reasons, such as a tenant using the pool or a party guest who swims in a residential pool at a social gathering. A licensee is a person who is allowed to enter the pool premises for business reasons, such as to service the pool. A trespasser is a person who does not have your permission to enter the pool premises, for example, a person who jumps the fence to swim in the pool without the owner’s knowledge or consent.
You owe a high degree of care to the invitee and the licensee, and less or no duty of care to the trespasser. If you own a pool, ensure the pool is safely maintained and remember to follow the safety regulations to avoid liability.
Suppose that your rental has a pool or hot tub that doesn’t have a fence around it or the fence has a broken gate, allowing children to gain access. If a child drowns because of gained access by way of a broken gate or improperly installed fence, the landlord may be held liable. To ensure there are no holes large enough for small children to crawl through or gain access to the pool or Jacuzzi the landlord or his or her agents must make periodic inspections of the fencing. Additionally, periodic inspections must be made to ensure self-closing and self-latching gates are in proper working order.
What is a landlord’s liability and responsibility if a tenant has a pool with permission of landlord? Liability is a very broad term. However, if you are wondering if some responsibility may be placed on you due to the tenant having a pool on the property, the answer (depending on the specific circumstance) is yes.
It’s also important to know that on December 19, 2007, the President signed into law the Virginia Graeme Baker Pool and Spa Safety Act . The Act specifies that on or after December 19, 2008, swimming pool and spa drain covers available for purchase in the United States must meet specific performance requirements.
Along with federal laws, there are state and local pool safety laws that apply to both private and public pools. These laws may include provisions requiring child-resistant fencing, pool alarms, anti-entrapment devices, warning signs, etc. These laws vary by state and locality; therefore, it is extremely important to check with your particular jurisdiction to verify you are in compliance.
In addition to taking every possible safety measure, pool owners also need to ensure that they are adequately covered against any potential risks. Pools are considered an “attractive nuisance” and it may be advisable to purchase additional liability insurance. Check with your insurance agent to find out what safety and protective equipment is required by your policy. Also ask whether discounts are available if you install additional types of equipment, such as pool alarms.
Consider including our Pool/Hot Tub Addendum with your lease agreement, which can be directly edited to reflect the particulars of your rental property. This addendum outlines the tenant’s pool cleaning and maintenance responsibilities, and sets forth safety guidelines and limits the property owner’s liability in the case of an injury sustained in the pool or hot tub.
If you have a pool, you have an obligation, stay informed and protect your investment.