Is It Fair for My HOA to Prohibit My Grandson From Using the Pool?

Whether an "Adult-Use Only" pool might violate federal or state discrimination laws, or be otherwise impermissible.

Question

My grandson comes to visit me for a couple weeks every summer. He loves to swim at the pool in my subdivision. The pool is also popular with the many children that live in the subdivision.

The homeowners’ association (“HOA”) that manages the subdivision recently placed an “Adult-Use Only” sign at the pool. It sounds like the rule was adopted because the HOA board was concerned that a child would get hurt at the pool. Is it legal to prohibit my grandson from using the pool?

Answer

The law that most closely addresses your situation is a federal law called the Fair Housing Act (“FHA”). The FHA prohibits discrimination in the housing context. Although the FHA is often thought of as protecting buyers and tenants from discrimination as the try to obtain housing, the law also protects existing homeowners and tenants from discrimination by an HOA.

In addition to the FHA, many states have laws that protect people from discrimination in the housing context.

The FHA makes it illegal for HOAs to discriminate based on “familial status.” What this means is that, in the course of providing facilities in connection with housing, such as a pool, HOAs cannot discriminate against:

  • children under the age of 18 who are living with their parents or legal custodians
  • pregnant women, and
  • people seeking to secure custody of children under eighteen.

Adopting a rule that prohibits all children under the age of 18 from using the pool could be viewed as discrimination.

Some exceptions might apply, though. One exception might be that the “Adult-Use Only” rule is the “least restrictive means to meet a compelling business necessity.”

For example, an HOA board might determine that to avoid an injury to a child (and any resulting lawsuit), a rule prohibiting use of the HOA pool by all minors may be "necessary." However, that will not be the “least restrictive means” of avoiding an injury and lawsuit, if the same result can be achieved, for instance, by simply requiring adult supervision. If the rule is not the least restrictive means, the exception will not apply, and the rule is likely unlawful.

As to you and your grandson, the HOA's conduct isn’t necessarily unlawful under the FHA given the fact that you don’t have legal custody of him; he is only visiting. In this situation, you might be best served by working with some of the parents in your community to address this issue with the HOA at the next board meeting.

In addition to the FHA, you should also look into whether your state provides any additional protections under its own housing discrimination law. And you’ll want to carefully review your HOA’s governing documents, including its Declaration of Covenants, Conditions and Restrictions (also known as CC&Rs) and bylaws. These documents may limit your HOA board’s ability to impose an “Adult-Use Only” pool rule.

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