Swimming pools and children. For some homeowner associations, the two do not always go together well. Some HOAs wishing to create "adults only" pool time have adopted rules that prohibit children from the swimming pool during certain times and in the process have violated the Fair Housing Amendments Act of 1988 ("the Act").

The Act was amended in 1988 to prohibit discrimination against any person in their use of a dwelling based on their "familial status." The Act defines "familial status" as a situation where one or more minors are domiciled with a parent, legal guardian, or the designee of a parent or guardian.

The United States Department of Housing and Urban Development ("HUD") is the governmental agency responsible for implementing the provisions of the Act. HUD adopts regulations to clarify the prohibited acts of discrimination in housing. These regulations include a prohibition against rules that have the effect of restricting a resident's use of the recreational facilities associated with a dwelling based on their familial status. HUD and various cases have found that the Act clearly applies to HOA swimming pools.

If a court finds that an HOA has adopted rules that violate the Act, it will be responsible for the costs of defending against any such claims and may be responsible for paying monetary damages (actual and punitive), plus the attorneys' fees of the complaining resident.

Therefore, it is in the HOA's best interests to have legal counsel review its pool rules to determine whether they violate the Act. Once it has been discovered that a rule potentially violates the act, that rule must be abandoned or modified. It is not sufficient to take the issue under advisement or investigation.

A quick glance at most HOA rules regarding swimming pools will likely uncover at least one rule prohibited by the Act. These include certain rules based on age, restrictions against children wearing diapers in the pool, adult-only pools and adult-only hours or swim times. These rules are discriminatory under the Act as they appear to discriminate against families with children by not providing equal access to the swimming pool to all residents. Over the past decade, a number of court decisions have applied the provisions of the Act to HOA pool rules and regulations. The cases have held that restrictions on children's use of a swimming pool, where those same restrictions do not apply to other adult residents, are prima facie cases of discrimination under the Act.

Courts have found that the only way an HOA may avoid liability for rules that discriminate against children is to show two things: (1) that the pool rule is rooted in a "compelling business necessity," and (2) that the rule constitutes the "least restrictive means" to achieve the desired effect. In the context of swimming pools, concerns about safety and sanitation typically prompt HOAs to adopt rules that limit children's use of the pool. Of course, keeping the pool safe and sanitary presents a compelling business necessity, but the Act requires that HOAs come up with more inventive ways to address their safety and sanitation concerns than simply forbidding minors under a certain age or non-toilet trained children from using the pool.

To better understand what types of pool rules can be validly adopted, a review of several cases is helpful.

• An HOA's rule forbidding children under 18 to swim without an adult was found by the courts to be in violation of the Act because it was overly restrictive. The court reasoned that under such a rule, even a 17-year old certified life guard could not swim alone. Less restrictive means could achieve the same safety goals by requiring persons without swimming skills to be accompanied by a person with swimming skills, regardless of age.

• A rule prohibiting all non-toilet trained children in the pool was also a violation because the goal could have been achieved by requiring all non-toilet trained persons to wear waterproof pants.

• Prohibiting baby strollers, walkers and playpens from the pool area was considered discriminatory even though it was clearly based upon safety concerns. The court found that a rule allowing only lounge chairs in the pool area have accomplished the same goal.

• A rule prohibiting inner tubes, balls and floats was not discriminatory because it covered equipment not used exclusively by children.

It's easy to violate the Act. If any pool rules are in violation, the board should take prompt action to remedy the problem by working with legal counsel.

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Published: May 21, 2008

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Richard Thompson owns Regenesis, a management consulting company that specializes in condominium and homeowner associations. He is a nationally recognized expert on HOA management issues. Regenesis publishes The Regenesis Report, a monthly newsletter for HOA boards, developers and managers. To subscribe, go to Regenesis.net. He can be contacted by email at .