Backyard pool owners clash with government regulators over new private rental market

As the dog days of summer heat up backyards across the state, some North Carolina families with private pools are turning to a new online platform to rent them out on an hourly basis. However, this new rental market is stirring the waters with state and local regulators who consider their pools “public.” With the private property vacation rental market on the upswing, the regulatory conflict is getting a lot of attention.

Letters sent on behalf of swimming pool rental platform Swimply to two North Carolina county health departments accuse them of misinterpreting state law by attempting to enforce public health regulations at single-family residential pools.

Two compliance letters sent by Austin Harrison, from legal firm Squire Patton Boggs (SPB), to the county health departments of Buncombe and Orange claim they stepped beyond their “regulatory authority” after the counties sent public health notices to individuals renting out their private pools on the Swimply app.

Buncombe County received a compliance letter from SPB in early July 2022, while Orange County received theirs last month.

Founded in 2018, Swimply allows homeowners to rent out private pools and yardage on their property to clients on an hourly basis, a model similar to home rental platforms such as Vrbo and Airbnb. Swimply users can also rent private tennis, pickleball, and basketball courts.

ARE THEY PUBLIC OR PRIVATE POOLS?

While Swimply pools are located at private, single-family homes, attorneys say county officials are attempting to enforce public health regulations by sending letters to Swimply hosts detailing public pool regulations in accordance with N.C. General Statute 130A-280.

However, Harrison says county attempts to regulate pools rented on the app “exceeds [department] regulatory authority because Swimply users’ pools are not public as defined in the statute.”

Harrison points to the N.C. Vacation Rental Act (VRA), enacted in 1999, as having the authority to govern private swimming pools. However, Harrison asserts that the act does not have clear provisions on private swimming pools when rented on platforms such as Swimply. 

“The North Carolina legislature…has taken no action in clarifying its public swimming pools statute or the VRA to account for rentals of private homes with pools via an app,” said Harrison.

DHHS REFUSES EXEMPTION

State and county officials have countered Harrison’s assertions by pointing to an August 2021 memorandum produced by the N.C. Department of Health and Human Services (NCDHHS).

In the memo, the NCDHHS claims that pools rented on the Swimply app must comply with state public pool regulations and are not exempt from statutes excluding pools at other “single-family dwellings” from regulation.

The NCDHHS justifies the lack of exemption for Swimply pools, stating, “when an owner or resident of a single-family dwelling opens use of that dwelling’s pool to the general public, especially for rent, they are explicitly expanding the use of the pool to users beyond the private use of the dwelling’s residents and their guests, and the pool is no longer private.”

As a result, the NCDHHS says a Swimply pool “requires an operating permit as a public pool” in compliance with N.C. public pool regulations.

County officials have indicated they are following NCDHHS advice on the matter. When reached for comment, a spokesperson for Buncombe County said the county has “been following [state] guidance” and directed to the 2021 memo. Orange County officials also linked to the memo when asked for comment.

However, Harrison says that counties should not enforce the state’s advice, stating the NCDHHS’s guidance is “legally inaccurate.”

WISCONSIN COMES DOWN ON SIDE OF POOL HOSTS

Previous fights over the classification of swimming pools rented on Swimply have been resolved in the app’s favor. In 2021, the Wisconsin Department of Health Services attempted to enforce similar regulations. However, the state’s Consumer Protection department found that Swimply pools did not qualify as “public” facilities.

“We believe the North Carolina legislature and its local regulatory bodies should promote similar business-friendly legislation…and rightfully allow the VRA to govern private swimming pools rented via Swimply,” stated Harrison.

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