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 encountered 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 reasons, but we felt it would also let us swim in relative peace. The problem we have is that some residents invite guests, including family members with small children, and ignore the age restriction. The boisterous 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 order to enjoy an adult environment and don’t feel we’re getting what we paid for.
A. “This is an interesting (and hopefully, timely) question as we head into the summer months,” says Scott Eriksen, Partner at Perkins & Anctil in Westford, Massachusetts. “Pools and age restrictions are two topics that command a considerable amount of ink in terms of their impact on community associations, and when you combine them (as in this question), the potential issues are many. We will unpack this question in its component parts to examine how best the Board should approach this.
“Age-restricted communities are unique in that they effectively permit the board to “discriminate” on the basis of familial status by requiring that occupants/residents be at least 55 or 62 years of age. There are two common types of age-restricted communities that are permitted under the federal Housing for Older Persons Act (known as HOPA): (1) communities where all residents are age 62 or older; and, (2) communities where at least 80% of the occupied units include one resident age 55 or older and the community shows an intent to provide housing for those 55+. In the case of 62+ communities, the restriction is more stringent (requiring all occupants to be over 62 years of age), whereas 55+ communities have some leeway by virtue of the so-called 80/20 rule. In either case, however, HOPA is not the end-all, be-all of age-restriction covenants. State and municipal restrictions, as well as lawful restrictions in the governing documents, may be more restrictive than, say, the 80/20 makeup of 55 and over communities under HOPA.
“In this case, there is a rule at the community that no one under 14 years of age may use the pool. As noted, this may have been a rule designed for safety reasons or it may have been implemented to correspond to the age-restrictions. If this community were not an age-restricted community, attempting to regulate the use of the pool by minors would be far more difficult. There is a considerable body of case law and administrative rulings related to the issue of “adult swim” and familial discrimination at community association recreational facilities. We generally advise our clients at non-age-restricted communities that only rules designed to protect against health/safety are likely to be enforceable when it comes to the use of gyms, pools, or other similar facilities by minors. At age-restricted communities, however, the analysis may be different.
“Since HOPA effectively permits the association to implement prohibitions on the use of the units and common facilities by younger individuals, the community in question is in a better position to implement and enforce the pool age-limit. The Board and management should, in the first instance, notify all residents that the Board intends to enforce all age restrictions (including as they pertain to the use of common facilities). Thereafter, in the case of violations, the Board should follow up with specific enforcement notices in a measured response to any offenses. Typically, we advise a warning, followed by a fine. If this does not compel compliance, the Board should consider engaging legal counsel to determine if suspension of pool privileges or even legal action may be warranted.”