Maui County experienced a record-breaking heat wave this past summer, making community pools more popular than ever. An increase in activity may prompt associations to consider new pool rules. But tread carefully- associations often violate the Fair Housing Act by adopting well-intentioned, or what might be considered “common sense” rules for pools and other property amenities. A better understanding of the Fair Housing Act will help associations understand where they have gone astray, and hopefully amend policies to avoid a potential lawsuit.

Keep in mind that persons under age 18 are a protected class under fair housing laws. While discrimination can occur in other FHA areas, this is one area where HOA rule making mistakes often happen. A rule should not mention children, infants, or teens. Rules must apply equally to all persons, regardless of age or familial status. Different persons in an HOA member’s household are entitled to the same level of services and access to facililities. An HOA cannot impose overly restrictive rules about children’s use of the common areas such as pools, hallways and open spaces.

Also, within the state of Hawaii, Fair Housing rules Federal standards but are also expanded to include additional protected classes,  prohibiting housing discrimination based on a person’s race, color, religion, ancestry/national origin, sex, familial status, physical or mental disability, marital status, age, HIV infection or sexual orientation and gender identity.

However, this does not mean an HOA cannot have rules, maintain an enjoyable atmosphere or address public health and safety. Most times rules mearly need to encompass the entire community, and not call out specific sectors.

Here are a few examples and relevant court cases.

Swim attire

An association may be justified in creating a reasonable rule limiting water attire to swimwear or clothing intended for swimming, such as a rash guard. Such rules should not be overly restrictive and address what is worn in the pool, which may differ from what is worn at the pool such as street clothing.

However, a rule that requires children who are not toilet trained to wear swim diapers is discriminatory. An association can make a rule to address sanitation concerns, but the rule should require all persons who require diapers to wear swim diapers in the pool.

Special facility use by gender

A federal court recently struck down a rule made by a New Jersey association that created separate male and female swim times. Even though the rule was made in an attempt to accommodate resident’s religious beliefs, the court found it discriminatory. So, forget about scheduling any ladies only water aerobics or men’s tennis nights at your facilities.

Different rules for minors

A 9th Circuit Court found rules regarding required supervision of minors at a community’s pool discriminatory against children based on familial status, dismissing safety and decorum concerns, including screaming. Read Iniestra v. Warren for details. So how does an HOA address noise levels? By making noise rules apply to all persons.

Other court cases have struck down rules that apply differently to children and adult residents within the community. Examples cited include associations that have different rules for minor’s use of amenities such as tennis courts, the pool, and clubhouse, or creation of “adult only” times.

Another example of safety

Another common rule violation under FHA is use of amenities such as weight rooms and gyms that set age limits. While the courts typically strike down such rules, an association can still address safety. In one court opinion, the following was suggested: “The Association is HIGHLY encouraged to modify their rules to tie the use of workout equipment, not to age, but to an ability to appropriately use the equipment.”  The same line of thinking can be applied to pool and aother amenity use where ability is a factor.

Action for HOAs 

It is a good idea to review your association’s current rules to see if any could be considered discriminatory. Does your association have any rules that target children or give adults special rights or privileges? It is strongly advised that HOAs consult an attorney well-versed in fair housing laws to help your association create effective rules, yet avoid an expensive legal battle in the future.