Rules, rules, and more rules. When living in a community association, rules governing the use of the community facilities, including the pool and fitness center, are a part of life. These rules are enacted so that everyone can enjoy and use the facilities in a safe manner. In recent years, you may have noticed some changes to these rules. For example, rules providing for adult swim hours have been replaced with lap swim hours, rules requiring children under the age of 3 to use a flotation device have been replaced with requiring anyone who cannot swim to use a flotation device, and rules prohibiting anyone under the age of 18 from using the fitness center have been replaced with all fitness equipment must be used in accordance with manufacturer’s recommendations. Why the changes to these and other rules that appear to serve the legitimate purpose of protecting the safety and welfare of children? The answer is found under fair housing laws.
Community associations are considered “housing providers” under the Fair Housing Act (FHA), and all rules and policies adopted by an association cannot discriminate against its residents or interfere with their access to, or use of, the association’s facilities. Use of an association’s pool and fitness facilities is considered a privilege associated with the dwelling and, therefore, within the purview of the FHA. The FHA prohibits discrimination in housing because of race, color, national origin, religion, sex, familial status, and disability. Familial status is defined by the FHA as families with children under the age of 18 living with a parent, a person who has legal custody of the child or the designee of the parent or legal custodian with the parent or custodian’s written permission. In general, fair housing laws protect families with children from being treated differently and less favorably from adult only households. With some exceptions, associations may not enact a rule which imposes a minimum age requirement for use of the community’s facilities. Note, though, that this article is addressing fair housing laws, which do not apply to commercial gyms and public community centers.
Associations must ensure that their rules do not run afoul of the FHA. To be in compliance, rules should not limit usage based upon an FHA protected class, including familiar status, rather rules should be neutral in language and in application. Rules should not contain an age limitation, but instead the rules should apply uniformly to all residents. In addition, rules should target problems – not status. For example, if children are deemed more disruptive than adults, the rule should prohibit the disruptive conduct rather than banning children.
There are, however, instances where age restrictions may be necessary. For example, at what age should a child be permitted to use the association’s pool or fitness center without adult supervision? While the FHA precludes any rule that discriminates against families with children, associations can enact reasonable health and safety rules provided the rule is based upon a compelling business necessity and that the rule adopted represents the least restrictive means to achieve the association’s purpose. The age restriction should be tied to an objective standard, such as at what age a child is allowed to be supervise others. In addition, the rule should be intended to further a legitimate interest, such as health and safety, and not noise, crowd control, or an attempt to limit the number of minor children at the pool.
The Department of Housing and Urban Development (which is in charge of enacting regulations to enforce the FHA) has generally found that restrictions limiting the use of a pool and fitness facilities by children under the age of 14, 13 or 12 without adult supervision to be reasonable related to the health, safety and welfare of the child. Any age limitation above that will call into question the purpose of the rule. There are some circumstance where a higher age limit may be acceptable, such as the use of certain gym equipment or weights.
The FHA is liberally interpreted and defines discrimination very broadly to provide protection for the classes of individuals it seeks to protect. If an association’s rules are found to be in violation of the FHA, the association can be subject to stiff penalties, as well as mandatory training of its board members on compliance with the FHA.
The law in this area is continuing to evolve. Therefore, it is important for an association to have its rules reviewed periodically by legal counsel to ensure that they are in compliance with the latest regulations and judicial interpretation of the FHA.
Susan Rapaport heads our Community Association practice group at Davis, Agnor, Rapaport & Skalny, LLC.
For questions about this article or other Community Association matters, please do not hesitate to contact Susan at 410.995.5800 or srapaport@darslaw.com.
