A service of:
Community123.com
Professional websites for HOAs & condos, since 2004
🎁 1st year FREE for HOATalk members! →
← Return to Topics List

Adult hour at pool - violates FHA?

Started by ChristineC1 • 35 replies • 3939 views

💬 Join us to post & get advice from 50,000 HOA & Condo leaders.

Create Free Account →

⚡ Takes 30 seconds

Already a member? Log in

ChristineC1 (Florida)
Posts: 13
Posted:
We own a condo in FL as a second home. A pool rule exists -- Adult Hour 3:00-4:00pm (no one 16 and under allowed in pool).

Several owners with children oppose this rule since most of us only get to use our second home a few precious weeks per year.

I believe this rule my violate the Fair Housing Act 1988 by preventing a certain group of the population from using a "common area." Rules specifying ages (ie: no one under 16) can exist for safety reasons but not because kids annoy you.

Anyone have an opinion on this?
AnnaD2 (Florida)
Posts: 960
Posted:
I like it! Wish we had that at our place! Chances are your pool is open at least 12 hours a day. So for 11 hours the kids can be kids and all the adults can be disturbed. Then for ONE hour adults can be adults---without the noisy kids. Not a very fair "balance" but it sounds as if the association responded to complaints from a lot of adults if this is what they did.
BrianB (California)
Posts: 2,820
Posted:
You would need to quote to me the specific section you believe is being violated, in my cursory exam of the FHA, i could not find anything like what you are saying.

I did find that in Sec. 807. [42 U.S.C. 3607] Religious organization or private club exemption, not for profits have some exemptions and rights granted to them, and among them the following: Nor shall anything in this subchapter prohibit a private club not in fact open to the public, which as an incident to its primary purpose or purposes provides lodgings which it owns or operates for other than a commercial purpose, from limiting the rental or occupancy of such lodgings to its members or from giving preference to its members.

This could be used to imply that granting an adult hour is in fact legal, since adults are members (not children), since only adults can enter into legal contracts for real estate.
BradP (Kansas)
Posts: 2,640
Posted:
I can tell you the people with kids won't like it, the people without kids will like it. I don't know that it violates the FHA, however, what is wrong with children?
MicheleD (Kentucky)
Posts: 4,491
Posted:
Quote:
Posted By BradP on 04/25/2008 1:57 PM
I can tell you the people with kids won't like it, the people without kids will like it. I don't know that it violates the FHA, however, what is wrong with children?

What is wrong with children? Not a thing. I'll send mine over to your house for that blissful hour. . .

Frankly, I think to moan and complain over ONE FREAKING hour out of the day is a little petty.

I thought maybe they weren't letting kids in at all. I just wonder why the hour is between 3:00 and 4:00 pm? That's right in the middle of my cocktail hour.

At least it gives the little rugbiters time to go poop and pee before they get back into the pool.

But since it's not a public facility, or a government facility, or doesn't receive government funds, yada yada yada, so on and so forth, I think it would be very unlikely that they would have to bow to anything in the FHA.

But, my all purpose caveat, I could be wrong. . .
BradP (Kansas)
Posts: 2,640
Posted:
Michele:

No thanks on the kids, have my own, if I can't earn them the fun way don't want them Actually an HOA pool in some areas is considered a semi - public facility with regards to health codes...don't know how that translates to FHA...however it should be checked out.
DonnaS (Tennessee)
Posts: 5,671
Posted:

Christine,

Even the people with kids pay for use of the amenities just as you do and therefore, all should have use of it at all times of operation. The one hour that is being "saved" for adults only is going a little far unless the pool hours are very limited. There are no FHA violations with the restrictions on the hours for 2 reasons. Mostly because a HOA is considered a private corp and therefore they have the right to create these kinds of silly rules and 2, because this has nothing to do with denying occupancy to anyone.

Now, if there are behavior issues with the kids in the pool, that is a different story. There needs to be rules, especially when there are older adults in the water. I have never had kids and don't care for getting splashed excessivly but, hey everyone, get along. It's a pool, a playspace and excercise space, not a library.
MaryA1 (Arizona)
Posts: 7,043
Posted:
Sorry to be the bearer of bad news to those of you who think this is a good rule! I have a document prepared by an HOA attorney in the Phoenix area. He talks about a number of issues relating to the Fair Housing Act. Here is some of the info contained in this doc:

1) Review the Associations Rules & Regs to make sure that the rules do not focus on age unless absolutely necessary. Most rules are meant to apply equally to all ages. For example: rules should not state "Children may ot ride their bycycles on the sidewalks." Rather, "No one is allowed to ride a bicycle on the sidewalk."

2) If an Assn's rule does focus on the age of a person make sure that the rule has a legitimate safety purpose. For ex: An assn may have pool rules that prohibit children under the age of 14 from being inthe pool area without an adult because of the concern for the safety of the children.

3) Make certain the assn's rules are uniformly enforced. Do not allow members of the BOD to enforce a rule only against a certain type of person (whether it be children, a minority race, a person with a disability, etc.)"

Item #3 specifically relates to the issue at hand. It would be wise to not adopt this rule as it would be a direct violation of the Fair Housing Act.

I checked out the website for FHA but could not find any of this info. In fact I find the website not very user friendly!
MaryA1 (Arizona)
Posts: 7,043
Posted:
Donna,

I guess where the confusion about FHA comes in is that FHA is a branch of HUD and the Fair Housing Act comes from HUD. HUD is concerned with more than just occupancy. But, most importantly, regardless of the fact that HOAs are private entities, they still must abide by Federal Law, just like they are subject to State law.
MicheleD (Kentucky)
Posts: 4,491
Posted:
Actually, it's just speculation that it "would" be against the FHA. More accurately it could be stated that it "could be" against the FHA.

But HOA attorneys are notorious for "conservative" approach.

Does that mean that someone might not "try" to sue on that approach?

No, they might, so have some bases covered is a "conservative" position to take.

Just like our CC&Rs give us the ability to tow over parking restrictions.

However, our HOA attorney advises against it because even though we can do it, and the homeowner cannot collect in a lawsuit in order to regain the money he had to pay to a towing company, he could still claim all kinds of "damage" that was done by the towing company. All of a sudden that transmission problem he's been living with for 2 years was "caused" by the towing company. Oh yea, and that $1,000 Canon digital camera that was in his car? That's gone now, too.

So yea, the judge would "uphold" our right to tow, but we risk paying these "damages" to the towed vehicle.

So the conservative approach is to avoid towing UNTIL WE GET A COURT ORDER to do so, even though our docs let us do it.

Still though, I find no problem with reserving an hour a day for adult only use.

Hope they find they can do it.

MaryA1 (Arizona)
Posts: 7,043
Posted:
Well, he may be conservative in his advice; however, I do respect his advice. Also, the Fair Housing Act states you cannot discriminate. By excluding children, unless its for a safety reason, you are discriminating. Would be interesting to know if there is case law regarding this issue.
MicheleD (Kentucky)
Posts: 4,491
Posted:
Mary said: "Also, the Fair Housing Act states you cannot discriminate. "

I understand that, but what I'm also saying is that until we know FOR SURE that the FHA covers rules that HOAs make for their various non-public amenities, then we are only speculating that it's reach is that deep.

That's all I'm saying.

We've seen evidence (on this board and elsewhere) that certain types of things just aren't covered by entities like FHA or American with Disabilities Act (ADA) and so forth, when it comes to HOAs.

GlenL (Ohio)
Posts: 5,491
Posted:
I remember growing up that they would chase all the kids out of the city pool a couple of times a day and just adults were allowed in it then but that was years ago. I also found the pool rules for a large well run (IMO) HOA in VA and they have a 15 min adult swim every hour which may be more palatable to the homeowners.
Studies show that 5 out of 4 people have problems with fractions
GlenL (Ohio)
Posts: 5,491
Posted:
Quote:
Posted By BradP on 04/25/2008 1:57 PM
I can tell you the people with kids won't like it, the people without kids will like it. I don't know that it violates the FHA, however, what is wrong with children?

Homeowners spend the first two years of their lives teaching children to walk and talk and then ask the board to pass rules telling them to sit down and keep quiet.

Some homeowners believe that the main purpose of holding children's parties in the clubhouse is to remind themselves that there are children more awful than their own.

Grandchildren are God's reward for not killing your own children. The Association's rules do not address such issues.

Mothers of teens now know why some animals eat their young. The board discourages such activities in the common areas.

Children seldom misquote you. In fact, they usually repeat word for word what you should not have said. Some owners have stopped bringing their children to board meetings.

Many owners have childproofed their homes but report that their children still get in. The board does not currently have a solution to this problem.
Anonymous
Studies show that 5 out of 4 people have problems with fractions
BruceF1 (Connecticut)
Posts: 2,535
Posted:
I've seen similar "adults only" time periods at public swimming areas (pools, state and local parks, etc.) in the past. I admit, that was several years ago, but if any swimming area was open to scrutiny, I would assume it would be a state or locally operated one.

As far as the FHA goes, that pertains to restrictions on purchasing and renting homes, so there probably nothing in the rules that would apply to swimming pools.

Unless someone is very rich, it's not likely the rule would be challenged in court, unless someone refuses to obey the rule and the association attempts to require compliance by, say, fining the individual.

But, it's easy to make the rule "fair." What's wrong with a one hour "adults only" period and a one hour "children only (except for an emergency)" period? Then, the pool restrictions are evenly balanced between adults and children. How could any judge deem that to be unfair?
BradP (Kansas)
Posts: 2,640
Posted:
Quote:
Posted By MicheleD on 04/25/2008 7:50 PM
Mary said:
I understand that, but what I'm also saying is that until we know FOR SURE that the FHA covers rules that HOAs make for their various non-public amenities, then we are only speculating that it's reach is that deep.


I wouldn't be so sure that an HOA pool is classified as a non-public entity. If I am not mistaken it is considered public because it open to a multitude of different people. It is kind of like the Y, except your membership fee here is the price of a house. I know the health department will consider it public, that is why they check on them, if it was private they wouldn't care.
BruceF1 (Connecticut)
Posts: 2,535
Posted:
There is a fine line between what is considered "public" in one sense, and what may be considered "public" in another.

For example, an association pool may be considered "private" in the sense that only members of the association and their guests are entitled to use the pool; the general public is excluded. Yet, it may be considered "public" to the extent that it is not a "family" pool intended for use by a more narrow group such as a family and invited guests, but is "public" in the sense that it may be used by a broader class of people (although, not the public at laege).

When determining what is meant by a particular word, such as "public" under the law, one must turn to the "definitions" portion of the particular statute which is often the first paragraph. There, one will find how the word is defined for the purposes of the statute. People sometimes overlook this section because they believe they understand the word as it is normally used and is defined in the dictionary. However, the law may give a word a broader or a narrower definition for the purposes of a particular statute. The use of a word may be even different from one statute to the next.
DonnaS (Tennessee)
Posts: 5,671
Posted:

Mary,

I am not confused about the FHA/ HUD laws, etc. I addressed this situation for it's "Rules, which are not in any way relating to any FHA laws. Just to clarify that I can state and understand those Laws as well as anyone can.
DJ1 (Ontario)
Posts: 798
Posted:
For those who see no problem with 1 hour adults only, maybe the solution is a 1 hour kids only. Now let's see how the adults feel?
BradP (Kansas)
Posts: 2,640
Posted:
Quote:
Posted By DJ1 on 04/26/2008 7:27 AM
For those who see no problem with 1 hour adults only, maybe the solution is a 1 hour kids only. Now let's see how the adults feel?

Probably not to good after their kids drown due to no supervision...
BrianB (California)
Posts: 2,820
Posted:
if it helps add fuel to the fire, remember that children have very few rights under the law except those specifically granted to them. Children can be discriminated against, they can be denied housing, jobs, service in the military, ability to hold job, own property, vote, drink, etc.. Private companies can ban them, discriminate against them, etc..

For a real world example: an R rated movie showing at a single screen theatre. A private company has VOLUNTARILY discriminated against children under a certain age. For two hours a day, children under the age of 16/17 are NOT allowed to be inside the theater to watch or engage in the private activity offered to others by the company. It's not a law, it's just a standard the theater applies. It's discrimination! But it's legal discrimination.

And everyone else is right... the FHA rarely, if ever, applies to most HOAs.

MicheleD (Kentucky)
Posts: 4,491
Posted:
Thank you, BrianB, very well said and what I was trying to get at.

Re: DJ's comment of not "letting" adults swim for one hour, making a "kids only" hour ...

Please....make my day!! I would only be upset if you MADE me swim with the kids for one hour!!

EllenS1 (Florida)
Posts: 1,148
Posted:
This is almost too funny! When I was looking for a condo in South Florida a granny came out, sized me up and was so proud that nobody under the age of 55 and no children could live there. I assume she thought it was a selling point since I was about 60. But it was totally against the existing law. So many condo and hoa documents are outdated by more recent laws and the recent laws supersede the old documents. There is no reason those who can't stand children should be exposed to them but they have many more options..their own home far away from all living people, assisted living, etc. Check out new laws and stand up for your rights.
BruceF1 (Connecticut)
Posts: 2,535
Posted:
Ellen,

What previously existing laws and what more recent laws are you referring to?
GloriaM (North Carolina)
Posts: 829
Posted:
Just for clarification the Health Department classifies HOA pools as Commercial, not public; they are private and open to membership only and their guests. A public pool is open to anyone to swim and run by a public entity.

Since the HOA is a corporation the Board of Director's have the right to promulgate Rules and Regulations to govern the pool; whether it is to have 15 minutes of adult swim or 1 hour they can. To ban children all together would be discrimination but to have a few blissful moments without all of the splashing, swimmies and shouting, the adults paying the HOA dues should be afforded that right as well. I have 2 daughters so I am not a child hater! I love children but would also love the 15 minutes of quiet swim time.
ChristineC1 (Florida)
Posts: 13
Posted:
Here is a case that has similarities:

http://www.fairhousing.com/index.cfm?method=page.display&pageid=3620

I also have a few others. Will post them as I find them.

I have learned that the rule was enacted many, many years ago because an older lady wanted to do laps without children in her way.

3:00-4:00pm is not the time to do laps in my opinion. To be fair (and possibly legal), the rule should then state: Lap swimming only between 3:00-4:00pm. My guess is that the pool would be empty.

BruceF1 (Connecticut)
Posts: 2,535
Posted:
Christine,

Hmmmmmmm. Interesting. This is the sort of thing lawyers point to when arguing their cases - prior court decisions (that's what common law is all about).

Noticing that this goes back to 2004, I do wonder, though, if there was any follow on. Was this case ever appealed and either upheld or overturned by a higher court?

I'd be interested in any other articles you turn up.
BrianB (California)
Posts: 2,820
Posted:
Quote:
Posted By ChristineC1 on 05/01/2008 1:40 PM
Here is a case that has similarities:

http://www.fairhousing.com/index.cfm?method=page.display&pageid=3620


I would remind the court of THIS in the FHA:
Sec. 807. [42 U.S.C. 3607] Religious organization or private club exemption
(a) Nothing in this subchapter... Nor shall anything in this subchapter prohibit a private club not in fact open to the public, which as an incident to its primary purpose or purposes provides lodgings which it owns or operates for other than a commercial purpose, from limiting the rental or occupancy of such lodgings to its members or from giving preference to its members.

When the other lawyer tells me "this refers to LODGING", i will point out that the ENTIRE Fair Housing Act refers to lodging, so if they say that limiting pool time violates the Act, They in fact are argueing that pool time is equitable to lodging, rental, or sales, and swimming hours doesn't seem to be any of those. Restricting Pool time doesn't violate the act since there are no words regarding "pool time" IN the act.

In fact, I would then COUNTERARGUE that the FHA demands that I DO ALLOW a period of "quiet time" if requested, per this standard:

(3) For purposes of this subsection, discrimination includes--

B) a refusal to make reasonable accommodations in rules, policies, practices, or services, when such accommodations may be necessary to afford such person equal opportunity to use and enjoy a dwelling; or

I would argue that creating a single hour per day of time for the elderly and handicapped to use the pool without ramunctious children would indeed be reasonable.
MicheleD (Kentucky)
Posts: 4,491
Posted:
BrianB said: "I would argue that creating a single hour per day of time for the elderly and handicapped to use the pool without ramunctious children would indeed be reasonable. "

IMO, regardless of whether they want to use it for "lapping" if they so desire.

Restricting usage for an entire summer period is immensely different from restricting usage 1 hour per day. . .whether that hour is 3-4:00 pm or 11:00 am - 12:00 pm, or whatever.

Restricting for an entire season is unreasonable. One hour a day -- not so much.

ChristineC1 (Florida)
Posts: 13
Posted:
Here is another extremely interesting case.

http://www.manufacturedhousing.org/publications/default.asp?id=14&article=168

Under "Rules Found Discriminatory" :

The specific age restrictive rules invalidated by the court fell into three categories: (1) absolute prohibitions; (2) adult supervision requirements; and (3) hours of access restrictions.

"It noted that any concerns that the community owners may have had were not necessarily linked to age, and any concerns about problem behavior could be addressed with the use of non-age related rules."

The court found that while the health and safety of the children and other residents of the park were legitimate concerns, these absolute prohibitions were not the least restrictive means to achieve such ends."

If you don't feel like reading all of it, at least read "Rules Found Discriminatory"
ChristineC1 (Florida)
Posts: 13
Posted:

(3) For purposes of this subsection, discrimination includes--

B) a refusal to make reasonable accommodations in rules, policies, practices, or services, when such accommodations may be necessary to afford such person equal opportunity to use and enjoy a dwelling; or

I would argue that creating a single hour per day of time for the elderly and handicapped to use the pool without ramunctious children would indeed be reasonable.

I am no lawyer but would you not have to prove that without the Adult hour, there is zero chance that an adult can enjoy the pool?

MicheleD (Kentucky)
Posts: 4,491
Posted:
...that would seem like an incredibly easy proof to come by, if you ask me.

BrianB (California)
Posts: 2,820
Posted:
Quote:
Posted By ChristineC1 on 05/01/2008 6:31 PM

(3) For purposes of this subsection, discrimination includes--

B) a refusal to make reasonable accommodations in rules, policies, practices, or services, when such accommodations may be necessary to afford such person equal opportunity to use and enjoy a dwelling; or

I would argue that creating a single hour per day of time for the elderly and handicapped to use the pool without ramunctious children would indeed be reasonable.


I am no lawyer but would you not have to prove that without the Adult hour, there is zero chance that an adult can enjoy the pool?


No, you would have to affirm/prove that an adult (any adult, just one) feel less than equal enjoyment with children present.
ChristineC1 (Florida)
Posts: 13
Posted:
Well, there is someone who is spearheading the campaign to eliminate the adult hour. It will be interesting to see what lengths it is taken to (perhaps a suit) and how the association will respond.
BrianB (California)
Posts: 2,820
Posted:
good luck with that. being old is a protected class. being young is not.

MicheleD (Kentucky)
Posts: 4,491
Posted:
Well, good for them that they have nothing better to do than moan and complain about adults getting single hour of the entire pool time to enjoy the pool all to themselves.

One would think there were plenty more constructive projects to keep one busy.

If I were the board, I'd grant 1 hour of swim time just to the kiddos.

Then they're even. I'm sure there's some garbage cans not placed properly that they can go seek out now.

🎯 You've read this entire discussion

Join the conversation with 50,000 HOA & Condo Leaders:

  • ✓ Ask follow-up questions
  • ✓ Share your experience
  • ✓ Get expert advice
  • ✓ Access 350,000 discussions
Create Free Account →

⚡ Takes 30 seconds

Already a member? Log in here

Terms of Use and Privacy Statement