Is Adult Swim Legal?

I get it, trust me. You want to quietly relax by the neighborhood pool and forget about all of the other six million things that you have going on in your life. The problem is that when you get settled in at the pool, someone’s 4 year-old is doing cannonballs in the pool near you and you are getting soaked. “It sure would be great if adults had their own exclusive swim time,” you think. As you leave you mention this to the pool manager or lifeguard and you are then informed that indeed your Association has created an adults-only swim time. This sounds like just what you wanted.

It sounds so reasonable – especially since the adults pay the assessments which are used to maintain the pool – and yet the truth of the matter is that “adults-only” swim times are in fact illegal under the Fair Housing Act.

The Fair Housing Act prohibits discrimination in the provision of facilities based on “familial status.” Basically, “familial status” exists where one or more persons under age 18 live with a parent or guardian. Homeowner associations and condominium associations are subject to the provisions of the Fair Housing Act and as such are barred from discriminating in providing access to amenities based on “familial status.”

A recent California federal case struck down an Association’s adults-only swim time as discriminating on familial status. The Court reasoned that an adults-only swim time discriminates against other association members who have children by treating them differently from those without children. This type of differential treatment in the provision of housing-related facilities is barred by the Fair Housing Act.

While the case may be appealed, other decisions in both Federal and State courts throughout the country have indicated a similar inclination toward finding in the same manner as the California court.

Written by: David H. Simpkins, Esq.

Pool Discrimination

Except for senior community pools, associations cannot prohibit children from using swimming pools, establish adults-only pools, or establish adults-only times. In Llanos v. Coehlo, a federal court found that the association's rules designating "family pools" and "adult areas" in the complex and prohibiting children from playing in and around adult areas of the complex were discriminatory and violated the Fair Housing Act. (Also see U.S. v. Plaza Mobile Estates.)

A similar decision was reached by a federal court in the unpublished case of Landesman v. Keys Condominiums. The association's reason for restricting children from the main pool was that adults enjoyed using the pool for lap swimming and they preferred the relative tranquility of a swimming pool not filled with active, noisy children. Although sympathetic, the court ruled against the association. The court is not unsympathetic to the concerns of the adult residents who want to be able to enjoy the pool in peace, but finds that plaintiffs have nonetheless established a prima facie case of discrimination and that The Keys Association has not articulated a legitimate justification for excluding children from the main pool. . . . If this were a case of a homeowners association allowing everyone to use the main pool at all available hours in the summer, with the exception of women, or persons born in Iraq or China, or members of the Episcopal Church, such restrictions would be equally unlawful as the restrictions on access by children. . . . Any problems The Keys Association believes are caused by noise or activity of certain children should be taken up with the parents or guardians of those children.