SUMMER FUN AT THE COMMUNITY POOL: DO WE REALLY NEED TO THINK ABOUT THE FAIR HOUSING ACT?

Spring is finally here and Memorial Day, the unofficial kick-off to summer, is just around the corner. The lead up to Memorial Day usually means two things for community associations: 1.Time to get the pool ready, and 2. Owners who would like to be able to use the pool this summer will find a way to pay their assessments. As the pool season approaches, a discussion of the current state of the Fair Housing Act and the Fair Housing Amendments Act of 1998 is important as these statutes directly impact how an association may regulate the use of its pool and other clubhouse facilities.

The Federal Fair Housing Act prohibits discrimination in connection with residential dwellings against individuals on the basis of their race, color, sex and national origin. The Fair Housing Amendments Act of 1988 went further, and prohibited discrimination on the basis of handicap and familial status. Many of the Fair Housing provisions do not apply to community associations, but community associations are subject to the jurisdiction of the Fair Housing statues to the extent the statutes prohibit discrimination in the provision of services or facilities with respect to residential dwellings. It is this language that subjects community association common areas, clubhouses and swimming pools to Fair Housing governance.

Communities must be aware that appellate courts that have been asked to decide Fair Housing cases challenging the validity of pool rules have found that the following commonly-adopted rules violate the Act:

• Adult-only swim times
• Restricting children to one pool when a community may have more than one pool
• Age restrictions for gaining entry to, and use of, a pool
• Requiring supervision of swimmers under a certain age
• Requiring children under a certain age be accompanied by a parent or guardian

If a community has adopted any of the above rules, or if a community has adopted comprehensive rules relating to the use its common areas and facilities, it should seek an opinion from its attorney as to their validity and enforceability in light of the Fair Housing laws. These statutes are being construed liberally by appellate courts across the country and a community does not want to find itself engaged in federal litigation over its pool rules. Not only is such litigation extremely time consuming, the potential penalties for engaging in a discriminatory practice, whether intentional or unintentional, can be substantial.