Local Law Blogs

Pool Rules and the Fair Housing Act

The Fair Housing Act (the "FHA") makes it illegal to discriminate against any person in the provision of housing-related services and facilities based on familial status. "Familial Status" is defined by the FHA as one or more persons who have not attained the age of 18 who live with a parent or legal guardian. Community Associations are subject to the requirements of the FHA and accordingly must be careful not to discriminate against persons 18 or younger with regard to services or community amenities offered by the Association. Mindful of this, Boards ought to be wary of placing restrictions on pool use based on age. Some common violations include age-based swim tests, adult supervision requirements, adult only swim times and greater restriction on guest allowances for junior members.

Courts across the country routinely strike down rules which require a swim test for only individuals who fall within a certain age group. The court’s rationale is that swimming capabilities have no reasonable connection with age. A 13 year old certainly may be able to swim better than an 18 year old. Unless the Association wishes to test everyone, it cannot restrict swim testing to a certain age group.

Although most courts would agree that adult supervision is viewed as a reasonable and necessary health and safety restriction for children under 12 years, courts have found required adult supervision for children who are 13 years or older as unreasonable and thus in violation of the FHA.

Similarly, many communities wish to enact a rule that allows for "adult only" swim time. However, without a reasonable basis that such a restriction is necessary for health and safety reasons, courts will likely strike such a rule. A better option might be to enact a regulation that allows for time where only swimming laps is permitted. Most often the reason for wanting adult swim time is to offer time in the pool where adults can swim laps without interference. The "lap only" restriction would accommodate this desire, yet not unreasonably discriminate against minors.

Lastly, Boards should be wary of enacting a policy that places greater restrictions on guest attendance for "junior" members. A guest policy should be uniform for all members as to avoid a violation of the FHA.

If you wish to further discuss the FHA and/or any of the restrictions noted above, please contact Megan Christensen at Stark & Stark in the Community Associations Group at (609) 896-9060 or mchristensen@stark-stark.com.

Full post as published by New Jersey Law Blog on June 12, 2008 (boomark / email).