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Article posted: 6/15/2013 4:46 AM

Lifeguards required when young children allowed unsupervised

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By David M. Bendoff

Q. Our association has a swimming pool. Under what circumstances do we have to have a lifeguard?

A. The Illinois Swimming Pool and Bathing Beach Act regulates swimming pools in associations having five or more living units. Regulations have been adopted that address the issue of lifeguards.

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A lifeguard (or lifeguards, depending on the size of the pool and number of swimmers) must be provided at all swimming pools that allow bathers who are 16 or younger to enter the pool area (not just the pool) without a responsible person 17 or older present.

That said, there is an exception if the parent or guardian of a person younger than 17 submits written permission to the association. The written permission would have to specifically permit the association to allow this child who is younger than 17 to enter the pool area or swim without a lifeguard or person 17 or older present.

All swimming pools that do not provide a lifeguard must post and enforce a rule that states "No person may enter the pool alone or swim alone." Associations with a swimming pool should also consult with their insurance agent or broker to determine if the association's insurance carrier has any other requirement concerning lifeguards.

Q. I am a member of a condominium association, the amenities for which include a weight room and swimming pool. The board adopted a rule requiring owners to sign a disclaimer of liability for themselves and their children before the owner or their children can use these amenities. Is this appropriate?

A. Each owner of a unit in a condominium is a co-owner, with all the other unit owners, of the common elements. The common elements include the amenities. Each owner generally has a right to use the amenities, subject to reasonable rules adopted by the board.

Conditioning use of an amenity on an owner's execution of a disclaimer of liability might not be reasonable, and the disclaimer might not withstand a challenge in a lawsuit. Further, keep in mind that the board of the association owes a fiduciary duty to the owners. A court is unlikely to permit a fiduciary to disclaim liability for its own negligence. Note, too, in Illinois a parent cannot waive the future tort (injury) claims of their minor children. Associations that do require owners to sign these disclaimers need to be cognizant of the question as to their enforceability.

The board could require guests of an owner to execute such a disclaimer. The effectiveness of a waiver, though, is often an issue in litigation. Appropriate types and amounts of insurance help manage the potential risk of loss associated with the use of the association's amenities. The board should discuss this with its insurance agent or broker.

Q. Does the Illinois Condominium Property Act apply to all condominium associations in Illinois? Our president says that it does not apply to our association, which is 3 to 4 years old.

A. The Illinois Condominium Property Act applies to all condominiums in the state. If the association's declaration submits the property to the Condominium Property Act, the condominium is governed by this law. There may be specific sections of the law that don't apply if the association's declaration says something else. However, there is no across-the-board exception to the applicability of the law to a condominium association, based on the age of the association or any other factor.

Q. Does the Illinois Common Interest Community Association Act apply to all common interest community associations in Illinois? Or, is there some threshold that the association must meet?

A. In general, the Common Interest Community Association Act applies to all common interest community associations in Illinois. However, there is an exemption for certain "small" associations. Common interest community associations that are incorporated under the General Not for Profit Corporation Act and that have either ten units or less, or annual budgeted assessments of $100,000 or less, are exempt from the Common Interest Community Association Act. Making matters a little more interesting, such small associations can nonetheless elect to be governed by the Common Interest Community Association Act. This election can be accomplished by a majority vote of the members of the association or by a majority vote of its directors.

• David M. Bendoff is an attorney with Kovitz Shifrin Nesbit in Buffalo Grove. Send questions for the column to him at CondoTalk@ksnlaw.com. The firm provides legal service to condominium, townhouse, homeowner associations and housing cooperatives. This column is not a substitute for consultation with legal counsel.

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