For many community associations, summer generally means another pool season for the use and enjoyment of residents and their guests. Most community associations with this amenity have adopted a set of rules that are geared towards reasonably protecting the health, safety, and welfare of pool users, as well as the association property. While enforcing these rules can be beneficial to the association, in our experience, pool rules are often riddled with language that could result in a potential discrimination claim under federal and state fair housing laws.
Federal and state fair housing laws prohibit community associations from discriminating against residents on the basis of "familial status." Familial status is defined as one or more persons age 18 years or younger who lives with a parent or legal guardian. As such, the association's rules cannot single out children for different treatment than adults, unless there is a genuine safety concern. For example, a rule that prohibits children from playing in the street may be found to be discriminatory as it should be applied to all residents. Alternatively, a rule limiting children's use of workout equipment based on the manufacturer's safety specifications is likely permissible.
To avoid a potential Fair Housing claim, which carries the possibility of severe penalties, including compensatory and punitive damages, as well as an award of attorneys' fees, our office generally recommends avoiding the following types of pool restrictions:
· Rules that implement a swim break for children;
· Rules that mandate "adult-only" swim time;
· Rules that prohibit persons under the age of 18 from using the pool without adult supervision;
· Rules requiring children to be supervised by a parent or legal guardian;
· Rules that are solely aimed at restricting the behavior of children (e.g. prohibiting strollers, tricycles, or other toys in the pool or pool area); and
· Rules prohibiting children in diapers from using the pool.
At the same time, community associations do need to administer their facilities in such a way to reasonably preserve the health, safety, and welfare of the property, residents, and their guests. Pool rules must therefore be drafted to meet both the requirements of fair housing laws and the requirements imposed upon the association to administer the property in the best interest of association members. In the event your association pool rules contain any of the potentially discriminatory restrictions listed above, please feel free to telephone our office to discuss alternative language that strikes this balance.