By: Barbara Hager
It is getting warmer out (slowly) and your association may be reviewing your recreation and pool rules, especially those regarding children, to get ready for the summer season. In the summer there are children out of school playing around and about the complex, and everyone swimming in the pool.
Be careful in making rules specifically aimed at children. In the old days (before the 1988 Federal Fair Housing Laws) associations typically had several rules regarding children which just seemed to “make sense” and were made with the intent of protecting health and safety. However, several of these old “common sense” rules may now be found to violate federal anti-discrimination laws, in the federal fair housing area. Fair Housing law does not permit discrimination against anyone based on “familial status” and this includes families with children.
For example, “children may not play in parking lot or in common areas” has been found to discriminate against families with children.
“Children under 5 not allowed in pool” or “children not allowed to swim after 5:00PM” are both illegal under federal fair housing laws. Additionally, “children must wear rubber diapers in the pool” is problematic. An acceptable way would be to say, “those with incontinence problems are required to wear a rubber diaper/undergarment in the pool.”
“Children may not swim without adult supervision”. This has been found to be illegal because not all adults can swim and many children may swim very competently. A better way to state this would be “anyone who does not know how to swim is not allowed in the pool.” This makes it clear you are aiming the rule at safety generally and not at particular persons. (You can make an exception for those taking swimming lessons with a certified swim instructor).
All these types of rules have been recently found to be in violation of the federal fair housing law which prohibits discrimination based on family status. Rules directed specifically at children are now problematic. Instead, your rules should be directed to the behavior you want to regulate, not the persons.
So instead of saying, “children may not play in the parking lot” the rules should state “no playing in the parking lot. “
Regarding pools, “adult swim time” should just be termed “lap swim time” which leaves room for children who are good swimmers to participate. Forbidding children from using the pool at times it is still open for adults is outright illegal.
The key to remember is, rules that were perfectly acceptable 30 years ago are no longer acceptable. Under the federal fair housing laws, an association may not treat families with children different than families or individuals without children. You will do fine if your rules are aimed at behavior, not particular people, especially children.