Keeping Community Amenity Use Rules Fair and Effective While Avoiding Discrimination Claims

By Kathryn Roberts, Esq.

Community Associations Institute – Georgia Chapter

Second Quarter Magazine 2020

Ahh, a relaxing day at the pool – something you have been looking forward to all week.  You lay your towel down on the lounger, stretch out, pick up that favorite book you couldn’t get to all week, and start to doze off. It’s been a long week. Then, suddenly, a group of teenagers bust through the pool gates, laughing loudly, cracking jokes, headed straight your way. They throw themselves down on the lounger right next to you and proceed to blast Blink 182’s “What’s My Age Again” on their phone speakers as they continue to carry on. They are just having fun, but a hot and uneasy feeling starts to overcome you. You know that song. It’s the one your teenage son used to blast in his room on repeat during his “rebellious” stage. You quickly see your visions of a peaceful snooze by the pool dissipate.   

We’ve probably all been there. Amenity use disturbances are a sticking point in many communities. And, quite often, boards are faced with requests to limit amenity use by children of a certain age to help alleviate these types of concerns.  But, boards need to tread carefully when setting rules that limit the age of amenity users.

Unless you live in an age-qualified community, your community will be subject to certain provisions of the Fair Housing Act (FHA) that prohibit discrimination against any person in the provision of housing related services or facilities based on familial status. “Familial Status” is defined to include families with children.  As you can imagine, this provision has been used to challenge amenity use rules, particularly those related to pools, that require adult supervision, adult-only swim times, and the implementation of no-children areas. 

The purpose of the FHA is to ensure equal access to housing and the provisions of services and facilities associated with that housing. Allowing the use of some amenities (or certain portions of the community) to adults-only or banning any children under the age of 18 from use without adult supervision would run afoul of the FHA.

If a community’s amenity use rule is determined to be discriminatory, then to avoid liability the association must show that the rule was “the least restrictive means to meet a compelling business necessity.” Another way to think about this is whether the rule is truly related to the health, safety or welfare of the child. The law basically recognizes that some limitations on child amenity use are reasonable because of the risk to the child. However, the rule cannot in any way exist to minimize disturbances to other users, like adults. The rule must be directly related to protecting the health and safety of the child.

With that in mind, pool and other amenity rules have been held to be in accordance with the FHA when they require appropriate supervision for certain children to use the facilities. Some opinions have allowed the bar or line to be set at 14 years of age, meaning that HUD has allowed rules requiring supervision if the child is less than 14 years old, but other opinions have set that bar at 12 years old. There are also other factors pertaining to the age of the supervising individual that need to be carefully considered with any of these regulations.

To help keep the peace while remaining in compliance with the law, boards should consider targeting certain behaviors, rather than people. For instance, let’s say a community has a facility setup with two pools and wants one pool designated for “adult-only” use. Rather than restrict the use of that pool to anyone over the age of 18, which would run afoul of fair housing laws, that pool could be designated for “lap swim only.” Or, you could adopt rules that say, “no loud noise,” “no rough play,” and “no toys in this particular pool,” for example. The other pool would not need to have the same rules; it could remain open for general swimming. Ultimately, the rules that your community adopt need to be neutral in their effect, as well as their intent.

As that Blink 182 song goes, “my friends say I should act my age.” I think we can agree that a person’s age is not always an indicator of their behavior. While blanket bans and other limitations based on age not only risk violating the law, they also might not properly resolve the concerns with the underlying conduct we are looking to control. This is why rules targeting behavior may be more effective anyway. As always, it’s smart to consult your community’s attorney anytime age-based amenity use rules are proposed, as they can help you best navigate these matters.  

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