Let your imagination run a little wild. The kids are creating a nuisance at the condo pool this summer, so wouldn't it be popular to create an adults-only swim time?

Or better yet, why not pass a new rule banning teenagers from skateboarding on the property? Or perhaps implementing an 11 p.m. curfew for minors? After all, board members and the community association manager could certainly use a break from fielding the increasing number of complaints about rowdy out-of-school kids.

Many frustrated boards have acted on such impulses, but their resulting actions can run afoul of the federal Fair Housing Act (FHA) and its various state counterparts, all of which prohibit discrimination based on race, color, national origin, religion, sex, familial status, and handicap.

Even the most well-meaning condominium can run into Fair Housing trouble when dealing with three particularly nettlesome sources of dissension in condominiums: children, companion animals, and accommodations to meet the needs of people with disabilities.

Because discrimination complaints under the FHA are time-consuming and costly, boards and property managers need to be aware of FHA principals when attempting to use rules to solve community headaches.

Discrimination v. Disparate Treatment

The urge to pass rules targeting kids is particularly tempting in condominiums that are populated primarily with older residents, says attorney Frank Flynn, managing partner of Downing & Flynn, in Boston.

"I think where you get into trouble is in a multi-family condominium where more of the residents are elderly. They say, 'You know what? We don't want kids around any more. Let's put in something that says no kids in the common areas.' Other unit owners and maybe trustees could think that's a problem," says Flynn, who notes that only condominiums legally designated as active adult communities are, by law, allowed to restrict children.

Rules that specifically cite children or other protected groups are discriminatory on their face, says Victor Posada, housing supervisor at the Massachusetts Commission Against Discrimination (MCAD), which hears the vast majority of FHA complaints in the Commonwealth. But, he notes, rules that don't specify particular groups can also be discriminatory. Non-specific rules can be discriminatory because they involve disparate treatment of groups, typically in the way they are enforced, or because they have an adverse impact on one or more of the protected groups, says Posada.

One example of disparate treatment, says Posada, are rules that prohibit storage of bicycles or other gear in hallways or common areas. If beach chairs and adult bicycles are tolerated but tricycles and children's bicycles trigger fines, that would be an example of disparate treatment, "where the rules are applied differently," says Posada.

Rules or policies that have an adverse impact, by contrast, are applied equally but have a greater (or adverse) impact on only certain groups. Examples of this type of discrimination, says Posada, include minimum height requirements for police officers, which discriminate against women and certain minorities. Thankfully, Posada says that this type of discrimination is almost unheard of in condominiums.

Reasonable Accommodations

Far more common, says Posada, is discrimination against people with disabilities, who are entitled to reasonable accommodations or modifications to accommodate their disabilities.

Reasonable modifications may involve a physical alteration of the property, such as adding ramps and elevators to accommodate residents who use wheelchairs. These types of modifications are often costly, and requests for them can be turned down by the condominium because they create "undue hardship," typically financial, says Posada. Noteworthy, too, is that condominiums with fewer than 10 units are do not have to consider requests for reasonable modifications.

Reasonable accommodations typically don't involve out-of-pocket expenses, but can involve administrative changes, such as providing an interpreter at the annual meeting to translate the proceedings into sign language, assigning accessible parking spaces for residents with disabilities, or permitting guide dogs at condominiums that don't allow animals.

Problem Pets

But even accommodations that are apparently clear-cut can be problematic, says Posada. By way of example, Posada cites a recent case in which two residents, each of whom had a disability, requested an accommodation for companion dogs. At the condominium in question, one resident had a heart condition and claimed to need the companion animal to accompany him on walks, says Posada. A second owner at the condominium had a mental disability and required the dog for companionship. In the first case, the request was rejected and in the second case the request was approved. In the end, says Posada, MCAD decided that the resident with the heart condition was not entitled to a dog, while the other one was.

The confusion about companion dogs is likely to increase, given the growing numbers of therapists who are recommending or prescribing companion animals. The exception could become the rule as recommendations for companion animals become more and more common.

Attorney Stephen Marcus of Marcus, Errico, Emmer & Brooks, in Braintree, Massachusetts, advises boards to request from doctors or therapists "a letter detailing that they are treating the person and there is some connection between the pet and the disability [the person is] being treated for."

Marcus agrees that "if you approach the right doctor in the right way, I'm sure you could get some kind of verification, even if it weren't exactly true, that the doctor thought the pet would be helpful for emotional support." But he warns, "It's kind of dangerous to assume that everyone who is requesting a pet is making some kind of bogus claim."

In the end, says Marcus, "You have to make the decision based on the information that you get. The advice is to err on the side of caution."

In Flynn's opinion, if a companion animal is approved, the condominium board still needs to put in place mechanisms for removing the animal if it ever becomes dangerous. "If that guide dog or companion animal bites people on the property, you need to have it set up so you can take action," says Flynn.

Listen Carefully and Negotiate Respectfully

Whether dealing with animals, children, or requests from people with disabilities, Posada says the best way for condominiums to stay out of legal trouble is to make it a policy to listen carefully to complaints of discrimination and to work with anyone who comes forward with an issue. "It's very important under state law that when a person is asking for a reasonable accommodation or modification, there should be a dialogue or interaction between the two parties to see whether it would help the situation be resolved."

Most cases, says Posada, can be resolved through mediation, which saves legal fees and the possibility of costly fines and damages for emotional distress.

"Rather than close the door on those individuals asking for accommodations, I think the best way is just go and talk to them and find out what the situation is [and] how it can be practically resolved. Sometimes with that dialogue we might better understand the situation of that person."

Educate Yourself

In his experience, says Posada, most cases spring from ignorance and can be settled through education.

"I really don't see many cases in which there is overt discrimination. But even if there is discrimination, [when the board] becomes aware of it, they should try to solve it," he recommends. "A lot of times the problem is really because of ignorance."

Marcus says community association managers are becoming much better educated about FHA rules and are less likely to act rashly or to reject outright any FHA requests or issues once they are aware of them. "I think property managers are doing a much better job these days of asking questions when these issues come up. There's more awareness of it, and there's a very good chance that we'll get a call under FHA if there is a request for a reasonable modification. The ramp request will almost always result in us getting a phone call."

The inclination of boards to consult their attorneys on FHA issues or requests is especially prudent considering the increasingly litigious age we live in, says Marcus. "Unit owners are much more aware of what their rights are under Fair Housing. They're much more likely to go to the MCAD."

To avoid trouble, boards should keep FHA issues up front and make it a practice to consult their attorney before passing that new rule change.