Community pools are not only a source of fun for neighbors and guests, they are often also a source of conflict in a summer. To avoid trouble at the time of the dip, it is convenient to know the regulations that regulate the use and enjoyment of the pool, as well as the jurisprudence that limits the rights and obligations of the communities of owners and bathers.
They also have a high cost: opening a pool in summer for a community of a hundred neighbors “if you don't need a lifeguard, it's around 4,000 euros per season. With a lifeguard and depending on your schedule, the amount is between 8,000 and 10,000 additional euros”, says Pablo Abascal González, president of the General Council of Associations of Property Administrators.
At the health level, state regulations in force is Royal Decree 742/2013, which establishes the technical-sanitary criteria for swimming pools. It must be taken into account that the previous national legislation dates back to 1960 and it was necessary to update it according to scientific and technical advances and the current criteria of the World Health Organization to control the emerging risks derived from the use of these facilities.
In relation to the use and enjoyment of community pools, it is necessary to refer to the specific regulations of each autonomous community on the use of these facilities and also to the municipal ordinances of the locality.
In most of the autonomous communities, a distinction is made between swimming pools for collective use, which are for public use that are accessed by paying (municipal, sports, hotels...), and swimming pools for private use, which are those that belong to facilities such as neighborhood communities. The regulations also include private pools, which are those of the chalets.
The autonomous regulations usually regulate in community pools issues such as the capacity allowed according to their extension; the hiring of a doctor or ATS if they measure between 500 and 1000 mtwo; a maximum depth of three meters in the adult area and 0.60 meters in the children's area (for children under six years of age); o The installation of trampolines and slides only in certain cases and with defined safety requirements to avoid damage.
In addition, there must be different toilets for each sex, the stairs to access and exit the water may not be more than 15 meters from each other, the area surrounding the pool must be built with non-slip material, a footbath is mandatory where you can rinse your feet and there should be at least two showers around the pool.
Lifeguard, not always mandatory
According to data from the Royal Spanish Federation of Rescue and Lifeguards (RFESS), in the last decade, more than 70,000 people have been specifically trained as professional lifeguards. This is a booming profession considering that there are 65,000 community pools throughout Spain. Although this job was traditionally carried out by young students who took advantage of the summer to earn extra money, in recent years the average age of these professionals has risen considerably.
Not all community pools are required to have a lifeguard, it depends on the autonomous community. In Catalonia, Castilla y León, the Balearic Islands and Murcia, community pools are considered private and lack the obligations imposed on public pools when it comes to having a lifeguard. But in Galicia, Cantabria, the Basque Country and Andalusia, those of neighborhood communities with more than 20 owners must comply with the legislation on public swimming pools.
In the Valencian Community, the obligations stipulated for public swimming pools do not have to be fulfilled by those with less than 100 owners; in the Community of Madrid, all those with more than 30 owners and therefore must have a lifeguard are governed by the regulations for public pools.
The title of lifeguard can be obtained through private training schools, lifeguard federations or the Red Cross. A few years ago, the Higher Level Training Cycle in First Aid was introduced, which is taught in educational institutions, both public and private. The price of the course ranges between 200 and 400 euros
The requirements to be a lifeguard are to be over 16 years old, pass the theoretical exams on first aid and have a freediving capacity of 20 meters, swim 200 meters in a maximum of 4:15 minutes, 50 meters with a swimsuit and a T-shirt in a maximum time of 55 seconds and 50 meter drag of an unconscious victim.
In addition to regional or municipal legislation, there must be internal regulations approved by the community of owners, which is responsible for ensuring that the facilities have the appropriate elements to prevent health risks and guarantee the health of the facilities.
These internal regulations must specify the conditions of use, capacity and hours of the facility. Matters such as the prohibition of the use of balls, mats, umbrellas, also animals (except legally recognized cases) or not allowing access to guests without being accompanied by an owner or tenant are usually regulated. In addition, it is considered mandatory to use the showers before bathing in the pool, enter the bathing area with appropriate footwear (street shoes are not allowed) or not eat in the area dedicated to bathing, using the designated areas for this. to that effect. All this information must be compulsorily visible in common places on the premises.
Although it is not mandatory to have civil liability insurance, it is recommended, since if an accident occurs in the pool, the community of neighbors will be responsible. In addition, if the community has a pool maintenance service provider, they can also be held liable.
problem with guests
With the arrival of high temperatures, the pool can generate conflicts between the owners due to the capacity being exceeded due to the simultaneous enjoyment of all the neighbors or due to the excess of guests. In the internal regulations, users are usually recommended to make appropriate use of the invitations when the pool has a private character; Otherwise, the governing board reserves the right to limit the access of guests.
Abascal recalls that "the lifeguard cannot perform access surveillance tasks, which would have to fall to another worker." For this reason, property administrators assure that measures to prohibit the use of the pool by people outside the community of owners are usually common or they can authorize it by limiting the number of people who can be invited and with established hours and shifts of use. It is difficult to avoid the abuse of guests if there are no control measures such as a security guard who checks who accesses the pool, but hiring him significantly increases the cost of the pool.
There are other options, also expensive, such as telematic capacity control systems, carrying a personalized card-type access device, reserving schedules and shifts through different APPs... but less effective.
The issue of abuse of guests has reached the Supreme Court when a community prohibited the indiscriminate use of the common elements by a group of teenagers who made abusive use of the pool and who, after some inquiries, it was learned that they were all guests of the garage owner. The sentence was forceful: the owners of the garage without housing in the building cannot enjoy the pool.
Delinquent and rented
On June 16, Law 10/2022 came into force on urgent measures to promote building rehabilitation activity in the context of the Recovery, Transformation and Resilience Plan, modifying the non-payment regime for common expenses included in the Horizontal Property Law , such as the limitation of the use of swimming pools to delinquent owners.
The reform establishes that the board of owners may agree on dissuasive measures against delinquency during the period of non-payment. These measures include the temporary deprivation of the use of services or facilities, provided that they cannot be considered abusive or disproportionate or that they affect the habitability of the buildings. These measures may not be retroactive in any case and may be included in the community statutes.
For Alejandro Fuentes-Lojo Rius, a partner at Fuentes Lojo Abogados, the new art. 21.1 of the Horizontal Property Law "expressly provides for the temporary deprivation of the use of services or facilities and, in this sense, the pool would not be an essential or necessary facility for the habitability of the home, since it is merely recreational in nature - unlike of the elevator installation for example -. Then, their deprivation would adjust to the limits of the sanctioning power granted to the communities”.
The problem -which the law does not solve- is the majority that the community needs to agree in a meeting to limit the use of the pool to defaulters. “This is the most problematic aspect of the reform. Even when it is an agreement clearly of a statutory nature because it imposes a limitation on the right to use and enjoy common elements, it must be understood that the intention of the legislator is to relax the quorum of unanimity required as a general rule for this nature of community agreements. , the simple majority of owners and quotas of art. 17.7 of the Horizontal Property Law”, assures this expert lawyer in real estate law.
It also supports the interpretation of approving these agreements by a simple majority of owners -the defaulter does not have the right to vote at the meeting- the express provision made by the law that these agreements may not be retroactive in any case, being a guarantee available delinquent homeowners harmed by the approved settlement.
Another problem among pool users is the enjoyment by the owners when the apartment is rented. Pablo Abascal is clear “if the house is rented, the owner and the tenant cannot simultaneously enjoy this service. Normally, unless otherwise agreed between the parties, the lessor loses in favor of the lessee all his privileges with respect to the use and enjoyment of the common elements, such as the swimming pool”.
The Supreme Court, in a ruling dated May 23, recognizes the ability of neighborhood communities to prohibit the use of the swimming pool and leisure and sports areas by garage owners who do not have a home in the building or real estate complex.
For this prohibition to be possible, the contrary must not be stated in the statutes or in the constitutive title of the community. In addition, this restriction of the rights of the owners of the garages is a mere finding or reproduction of what could already be deduced from the constitutive acts of the community: the owners of the parking spaces are exempt from paying the expenses of the swimming pool.
The doctrine that establishes this ruling is based on the consideration that a swimming pool, by its very nature, is at the service of the owners who have their residence in the building and that the owners of the garages are their owners, "but not for they are residents, but users of a parking space".
The swimming pool as a common element -reasons the ruling- is not intended to allow the owners of the car parks to enjoy it, who acquire them to park a vehicle and not for the recreational particularities of the building. And he underlines that "the use of the swimming pool is strange, therefore, to the very nature and purpose of the acquisition of the garage".