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Swimming the Dangerous Waters of the Fair Housing Act

As the weather warms up, community association pools are open and ready to be enjoyed.  In addition to cleaning the pool furniture and testing the chemicals in the water, boards are tasked with the responsibility of creating rules to protect against harm to those using the pool.  Boards must remain diligent so their well-intended rules do not run afoul of the Fair Housing Act (“FHA”).

Under the FHA, community association boards are prohibited from creating rules which have a discriminatory effect on a member of a protected class, which includes race, color, national origin, religion, sex, familial status, and disability.  While rules which would constitute violations against a member of many of these protected classes would seem to be obvious, in this context, many boards have faced discrimination claims on the basis of familial status, i.e., discrimination against families with children.  As an example, in any community other than those federally designated as senior housing, “all-adult” swimming times are clearly prohibited.

While a rule which requires infants and small children to wear swim diapers seems like a common-sense approach to prevent against obvious health risks, by basing such rule on an age, rather than conduct, many associations have learned the hard way that violations of the FHA carry harsh consequences.  Penalties for FHA violations result in significant financial sanctions.

In drafting the pool rules, community association boards should make every effort to establish rules that apply to children and adults alike.  For example, instead of requiring only infants and small children to wear swim diapers, boards should require any individual with incontinence to wear appropriate swim diapers.  While this is an extreme example, boards must look at all of their rules with a close eye to ensure they are not singling out any particular group.  If you have any questions or concerns regarding you association’s pool rules, be sure to contact your community association’s legal counsel.


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