Is it okay to have adult-only swim hours? Are children under the age of 12 allowed to use a gym?

If you live in a community association, you’ve probably noticed that rules have changed over the last few years. That’s because communities don’t want to be found guilty of breaking laws that aim to prevent age-based discrimination from occurring.  

If you’re not familiar with rules concerning amenities and age restrictions, you can get some basic information from this article.

Table of contents

• The Fair Housing Act
• The Fair Housing Act’s impact on community associations
• How to create rules that accommodate all community members
• Examples of age-inclusive rules
• Exceptions
• What happens if rules are discriminatory?

The Fair Housing Act

The federal Fair Housing Act (FHA) protects people from discrimination when they rent or buy a home, apply for a mortgage, request housing assistance, or engage in other housing-related activities. 

The Act exempts owner-occupied buildings with less than five units, single-family houses sold or rented by the owner without the use of an agent, and housing operated by religious organizations and private clubs that limit occupancy to members.

Owners and tenants cannot be discriminated against because of their:

• race
• color
• national origin
• religion
• sex (including gender identity and sexual orientation)
• familial status
• disability

While age isn’t explicitly included in that list, familiar status does apply to families with children.

The Act does not limit the applicability of reasonable restrictions, such as limiting the maximum number of occupants permitted to occupy a dwelling.

Included in the examples of familial status discrimination is “imposing overly restrictive rules about children’s use of the common areas” (such as pools, hallways and open spaces).

In Canada, provinces have their own Human Rights commissions to protect young people from age discrimination. For example, the Ontario Human Rights Code protects people from discrimination under the ground of age in their homes, in contracts, at work, and in other social areas.

The Fair Housing Act’s impact on community associations

Community associations are considered housing providers under the FHA, meaning rules and policies adopted by an association cannot discriminate against its residents or interfere with their access to, or use of facilities. 

Using a pool or a gym is considered a privilege associated with the dwelling and therefore, within the purview of the FHA. As such, it would be very difficult for an HOA or condo to enforce a rule that outright bans kids from using a swimming pool.

Fair housing laws aim to protect families with children from being treated differently and less favorably from adult-only households. With some exceptions, associations may not enforce rules that impose a minimum age requirement for use of shared amenities.

How to create rules that accommodate all community members 

Community association rules should not contain age restrictions. Instead, the rules should apply uniformly to all residents. They should also address behaviors instead of statuses.

As an example, instead of passing a rule that says “children must not ride bikes on the sidewalks,” say this instead: “riding bicycles or other similar equipment on the sidewalks is prohibited.” The second rule addresses the issue, and applies to everyone in the community.

When it comes to rules regarding gym equipment, the goal is to keep people safe, not to keep kids out of the facility. That being said, certain equipment may be safer for persons of a bigger size, so it may be appropriate to place restrictions based on the manufacturer’s recommendations for size.

Like any rule, there will be exceptions when it comes to limiting access to amenities based on age. For example, at what age should a child be allowed to use a pool or gym without adult supervision? 

 While the FHA precludes rules that discriminate against families with children, condos and HOAs can enact reasonable health and safety rules, provided the rule is based on a “compelling business necessity.” It must also represent the least restrictive means to achieve the association’s purpose.  Since swimming poses a threat to safety, it does make sense from a liability and safety standpoint to require children under a certain age to be supervised by someone older. The age restriction should be tied to an objective standard, such as at what age a child is allowed to supervise others. 

The Department of Housing and Urban Development, which is in charge of enacting regulations to enforce the FHA, has generally found that restrictions limiting the use of pools and gyms by children under the age of 14, 13, or 12 without adult supervision, to be reasonable. The person supervising should be at least 16. Any age limitation above that may call into question the purpose of the rule.

Examples of age-inclusive rules        

Below are some FHA-friendly rules that condos and HOAs can use or refer to when updating rules or policies.

• Any person who is incontinent or not fully potty trained must wear appropriate waterproof clothing when entering or being carried into the pool.
• Lane swim hours are from 8 p.m. to 10 p.m. every evening.
• Children under the age of 14 are not permitted to use the pool without being accompanied by a person who is at least 16 years of age.
• Only lounge chairs may be brought to the pool area.
• All personal items and recreational gear must be removed from the common room by 10 p.m.

Exceptions

If a community meets the requirements under the Housing for Older Persons Act, then it may be legally entitled to create rules that exclude children from common areas or activities.  

What happens if rules are discriminatory?

If someone believes that their community is trying to enforce a discriminatory rule, they should file a complaint with the U.S. Department of Housing and Urban Development (HUD).

Allegations must be filed as soon as possible because there is a one-year limit to file from when the date of the alleged discrimination under the FHA occurred. When reporting housing discrimination, provide as much information as possible.

The Office of Fair Housing and Equal Opportunity (FHEO) will start an investigation shortly after receiving an allegation. The FHEO will either investigate the allegation or refer the allegation to another agency to investigate.

During the investigation, the FHEO will make efforts to help parties reach an agreement without bringing in legal intervention. If the allegation cannot be resolved voluntarily by an agreement, then the FHEO may issue findings from the investigation.

If the investigation shows that a law has been violated, the HUD or the Department of Justice may take legal action to enforce the law.

Communities have had to pay fines in the past for breaking the law. As an example, in a case entitled HUD v. Paradise Gardens HOA, the association prohibited children under the age of 5 from using the pool, and restricted children ages 5 to 16 to using the pool from 11 a.m. to 2 p.m. The purpose of the rules was to promote sanitary and healthy swimming facilities, reported the HOA. However, those rules clearly discriminate against families with children and violate the Fair Housing Act. The pool would not be cleaner if kids were limited to daytime hour usage. The association was fined $7,000 for trying to enforce discriminatory rules.

Conclusion

Housing discrimination laws are designed to help ensure everyone can enjoy their home with as few barriers as possible. However, these laws are dynamic and change as new situations arise.  

As such, community associations need to have their rules reviewed periodically by an attorney to ensure that they comply with the latest regulations.