An association in Washington probably cannot restrict use of an amenity (i.e. a swimming pool) to “adults only” for any part of the day, unless there are identical amenities available for use by children. Such a restriction would likely constitute discrimination based on age, which is prohibited by the federal Fair Housing Act. But an association can restrict certain activities in the amenity (such as splashing or roughhousing) or the types of use (such as “laps only”), so long as the restriction is uniformly enforced without regard to age. No Washington court has considered whether associations can restrict use of amenities to “adults only”, but the California Court of Appeals has held that restricting use of an amenity to “adults only” does not discriminate against children if the restriction is not a total exclusion and the restriction is not unreasonable. Our experience with fair housing agencies in Washington is that they will find any restriction based on age or family status to be a violation of the Fair Housing Act. An exception to this rule applies to associations that qualify as “housing for older persons,” which are not subject to the Fair Housing Act age discrimination provisions. An association will qualify as “housing for older persons” if:
- The association’s housing is provided under any State or Federal program that the Secretary of Housing and Urban Development (HUD) determines is specially designed and operated to assist elderly persons; or
- The association’s housing is intended for, and solely occupied by, persons 62 years of age or older; or
- The association’s housing is intended and operated for occupancy by persons 55 years of age or older, and
- at least 80 percent of the occupied units are occupied by at least one person who is 55 years of age or older; and
- the housing facility or community publishes and adheres to policies and procedures that demonstrate the intent that the housing be restricted to persons 55 and older; and
- the housing facility or community complies with rules issued by the Secretary of HUD for verification of occupancy.
Although associations generally may not restrict all use of an amenity based on age, they can probably restrict certain activities (such as splashing) if the restriction is uniformly enforced against children and adults. Associations can also probably limit swimming pools to “laps only” or to “quiet swim only” if the restriction is reasonable and does not amount to a total exclusion for children (i.e. the restriction is only for certain times of day, or the restriction is in effect at all times but there are other unrestricted pools available for children). Additionally, associations can probably prohibit the use of beach balls, rafts, and other water toys, provided that the prohibition applies to both children and adults. Finally, associations can probably impose restrictions on children’s use of pools and other amenities that are reasonable in light of legitimate health and safety concerns. Following rules by government entities is almost always safe. For example, an association can probably require children under the age of 13 to have adult supervision in swimming pools due to legitimate concerns regarding their own safety. However, a rule requiring adult supervision of children under the age of 13 may be deemed unreasonable since children over 13 are no more likely to drown than adults would be. Similarly, an association can probably adopt a rule requiring that bathers who use diapers wear rubber pants and bathing suits in the pool. An association adopting such a rule should ensure that it does not refer only to “children” in diapers, since the health concern the rule aims to address would apply equally to incontinent adults. Feel free to leave a comment or contact us directly with any questions!