CONSIDER FHA REGULATION WHEN WRITING POOL RULES
Many community associations have pools and other recreational areas for the members’ use. It is common for associations to establish rules of use for these facilities. Those rules should take into account the impact of the Fair Housing Act as it relates to families with children, and also applicable state and local laws. FHA regulations prohibit housing discrimination based on familial status (e.g., families with children), except in housing that qualifies as housing for older persons… Specifically, discrimination against families with children in the terms, conditions, or privileges of sale or rental or in the provision of services or facilities in connection with the sale or rental is prohibited. Rules that restrict children from using recreation areas could prevent families with children from having full use and enjoyment of the premises. To be lawful, the housing provider must have a legitimate health or safety reason for excluding families with children from using those facilities. A policy that would require a responsible adult to supervise children at pool or recreation room facilities would appear to be tailored to protect legitimate health and safety interests. For example, under the FHA, a swimming pool rule requiring children under 14 to be accompanied by an adult has been found by the courts to serve the legitimate purpose of maintaining safety, and was not discriminatory. By contrast, swimming pool rules that banned children under the age of 5 from the pool, and that limited pool use to 11 a.m. to 2 p.m. for children between 5 and 16 were found to be in violation of the FHA as too restrictive and/or not tailored to real safety considerations. Another common target of the FHA is “adult swim” periods. While it is not permissible to restrict use of the pool based on age, it is permissible to limit the pool to lap swimming during stated times. The difference is that the former is a restriction on who can use the pool; the latter is a restriction on how the pool can be used. Additionally, there are state and local laws applicable to swimming pools. For example, North Carolina General Statutes 130A-280 through 130A-282 provide for the regulation of public swimming pools in the State, as they may affect public health and safety. “Public swimming pool” includes pools at apartments, athletic clubs “or other membership facility pools and spas.” Pursuant to this statute, the NC Department of Environmental and Natural Resources has adopted regulations governing public swimming pools. Rules applicable to community pool and recreation areas should comply with federal, state and local laws. They should be designed to serve reasonable health and safety interests, but not so restrictive to be contrary to the FHA because they unreasonably restrict families from having full use and enjoyment of the association’s facilities.