Rules and regulations often tend to lag behind the emergence of new industries, products, and services. Whether it be autonomous vehicles, drones, food delivery services, or any other market innovation, the law is frequently playing catch up. This is because innovation, by its nature, is something new that challenges the status quo. As a result, regulations often do not address the innovation in question or are hurriedly introduced after the fact. More often than not, these regulations are poorly designed, shaped by the input of competitors and critics, and are harmful to innovation.
This has been the experience of California start-up Swimply and its innovative pool-sharing service. Founded in 2019, Swimply allows homeowners to rent out private pools and other amenities like BBQ grills and basketball, pickleball, and tennis courts. While similar to other short-term rental companies like Airbnb and Vrbo, Swimply is unique in that it focuses on providing customers access to specific property features. These features can be rented on an hourly or daily basis, affording consumers maximum flexibility.
However, some state and county governments are confused about how to classify or regulate Swimply as a business. This has led some government officials to either ban or misclassify their operations or lump them together with public pools. Such actions are a mistake that threatens to undermine innovation and snuff out a valuable service that consumers demand.
There does not appear to be a logical basis for regulating any private pool as a public facility. While occasionally rented out for a small profit, these facilities remain privately owned. Airbnb rentals often include homes with pools, yet these rentals are not regulated as public pools.
In fact, many state and local regulatory codes exempt short-term property rentals from the same rules required of Swimply. For instance, South Carolina’s code of regulations prohibits residential swimming pools from being rented to the general public unless permitted by the Department of Health and Environmental Control. However, this code specifically exempts “Short-term property rentals through Airbnb, Vrbo, or other similar arrangements” that provide pool or spa access. That means these companies do not have to abide by the same regulatory requirements dealing with construction, design, and pool operation, as Swimply. If the primary concern about pool rentals is public health and safety, then that concern still exists for any Airbnb rental providing pool access.
In neighboring North Carolina, there are technically no laws specifically governing backyard pool rentals. However, the state’s Department of Health and Human Services (DHHS) issued guidance on the subject in August of 2021. This guidance explained that the state’s single-family dwelling exemption, which exempts residential swimming pools from public pool regulations, does not apply to apps such as Swimply. Some North Carolina counties, like Orange County, have jumped on this guidance and sent letters to Swimply renters, informing them that they are out of compliance with the law. This is despite the fact the DHHS document is non-binding and an earlier 2020 department guidance document appears to have exempted similar services like home rental spas under North Carolina’s Vacation Rental Act.
The same debate on the scope of government regulations is playing out in other states and localities across the U.S., with no clear end in sight. For instance, last year, Henderson, NV sent out notices informing residents that renting backyard pools violates Southern Nevada Health District standards, a position strongly contested by Swimply. There is no justification for applying different health and safety standards to Swimply.
It doesn’t have to be this way. In most cases, there is an easy solution to disagreements about regulatory interpretation. Absent clear laws on the subject, lawmakers can pass legislation that specifically addresses Swimply services, or provide additional clarification on existing laws. This means defining private pools as pools that serve residents and their guests, regardless of whether those guests have paid to rent the pool. Similar language can be applied to other amenities connected to the residence.
By simple default, Swimply is no different than other rental services and should be classified as such. Providing such clarity would go a long way toward cutting down on unnecessary confusion and the political opportunism that appears to have captured some local governments. It would also help foster the type of healthy business environment that is needed for unlocking the full benefits of new innovative offerings like Swimply’s pool rentals.
