Page 5 - New England Condominium June 2019

NEWENGLANDCONDO.COM NEW ENGLAND CONDOMINIUM -JUNE 2019 5 Peaceful Pool Time? Q We are retired, and chose to live in a 55+ community geared to an active-adult lifestyle. But summer is coming, and we’re concerned about the swimming pool stress we en- countered last year. There is a sign posted at the pool that prohibits anyone under 14 from using the pool — the age limit, I imagine, was established for safety rea- sons, but we felt it would also let us swim in relative peace. The problem we have is that some residents invite guests, includ- ing family members with small children, and ignore the age restriction. The bois- terous activity really ruins our enjoyment of this amenity. When we tried last year to point out the age restriction, we nearly started a war — and management said the sign was a “suggestion” and could not be enforced due to Fair Housing laws. Is this true? Is there any way we can get the Board and management to limit use of the pool by children? We don’t dislike kids — but we purchased our condo in age-restricted communities that are per- order to enjoy an adult environment and mitted under the federal Housing for spond to the age-restrictions. If this com- don’t feel we’re getting what we paid for. —Anxious Swimmers A “This is an interesting (and where at least 80% of the occupied units difficult. There is a considerable body of hopefully, timely) question include one resident age 55 or older and case law and administrative rulings relat- as we head into the sum- mer months,” says Scott Eriksen, Partner vide housing for those 55+. In the case of ial discrimination at community associa- at Perkins & Anctil in Westford, Massa- chusetts. “Pools and age restrictions are stringent (requiring all occupants to be advise our clients at non-age-restricted two topics that command a considerable over 62 years of age), whereas 55+ com- amount of ink in terms of their impact on munities have some leeway by virtue of protect against health/safety are likely to community associations, and when you the so-called 80/20 rule. In either case, be enforceable when it comes to the use of combine them (as in this question), the however, HOPA is not the end-all, be-all gyms, pools, or other similar facilities by potential issues are many. We will unpack of age-restriction covenants. State and minors. At age-restricted communities, this question in its component parts to municipal restrictions, as well as lawful however, the analysis may be different. examine how best the Board should ap- proach this. “Age-restricted communities are unique in that they effectively permit ties under HOPA. the board to “discriminate” on the basis of familial status by requiring that occu- pants/residents be at least 55 or 62 years may use the pool. As noted, this may have Board and management should, in the of age. There are two common types of been a rule designed for safety reasons or Older Persons Act (known as HOPA): munity were not an age-restricted com- (1) communities where all residents are munity, attempting to regulate the use age 62 or older; and, (2) communities of the pool by minors would be far more the community shows an intent to pro- 62+ communities, the restriction is more tion recreational facilities. We generally restrictions in the governing documents, may be more restrictive than, say, the association to implement prohibitions on 80/20 makeup of 55 and over communi- “In this case, there is a rule at the com- munity that no one under 14 years of age ment and enforce the pool age-limit. The it may have been implemented to corre- ed to the issue of “adult swim” and famil- communities that only rules designed to “Since HOPA effectively permits the the use of the units and common facilities by younger individuals, the community in question is in a better position to imple- Legal Q A& continued on page 21 QUESTIONS & ANSWERS