Kids, Condos and Pools

“Kids are the future, just not always the future we envision.” - Me.

“Condominium” is not an old Latin word for “quiet” or “kids free.” Unfortunately, too many associations think this is the correct translation. So they make rules that directly or indirectly bar children from living at condominium associations. And your association can do that, but it will get sued, lose, and pay a lot of money to the aggrieved family.

Simple put, the Federal Fair HousingAct makes it illegal to discriminate against children. How do associations discriminate against children and get in trouble? There's not enough space in this column to exhaust the examples. But common ones are outlawing bicycles,not allowing toys on the common area, and restricting access to a pool. One Rockingham County condominium association restricted residential use to no more than two persons per Unit, despite a zoning ordinance that allowed for more than two persons in a two-bedroom home. Using good language does not make something illegal, legal. It just covers it up a bit and leads to a false sense of security.

If you want to outlaw kids at an Association, you have to turn it into an over-62 condominium association. (In an over-55, an Association chooses a percentage between 80 and 100. That percentage reflects the percentage of Units which must have at least one resident over 55 in the Unit, so a young coulee could move in with there two in an over-62, it's likely you are going to have kids at the condo association at some point.

After all, for many young couples, condos are the new starter home. As a society we went from building Capes to Colonials, to Colossals. (When was the last time you saw a development of ranches or capes being built?) With the median family income in America being about $50,000, it can be really hard for a couple or single parent to sav toddler. In an over-62, every resident of every unit has to be at least 62.) Assuming you don't live e money for a 20% down payment on a $300,000 home. A $100,000.00 condominium looks much more financially attractive. So condominium associations are going to get kids.

Young couples move in, and the older residents get upset and pass bad rules. And pool rules cause the most problems.

Similarly, an association will likely be found to be discriminatory if it sets pool hours for children. In one case, an association set specific times for children to use the pool. It rationalized this by noting adults frequently used the pool for lap swimming and during that time period, they wished the pool not be populated with active, noisy children. The Court ruled against the Association noting that while it was sympathetic, the rule still discriminated against children and was struck.

It noted any problems caused by noise or activities could be dealt with in less restrictive manners, such as fines, than by barring children from a pool.

One would think that language at a pool such as, “No one under the age of 18 shall be at the pool unaccompanied by a parent” would be okay. However, at least one court has found such language discriminatory, noting that even a 17 year-old certified lifeguard would be prohibited from being in the pool alone. Essentially, you cannot require parental supervision, but you can require supervision by a responsible adult.

You cannot prohibit baby strollers walkers or playpens from the pool area as these discriminate against families with children. You can pass rules that require them to be used and placed in such a manner as not to interfere with the movements of other owners.

You cannot prohibit all non-toilet-trained children from a pool. But you can prohibit all incontinent persons from using the pool. This would, of course, accomplish the same result and protect residents not only from weak bladdered toddlers, but also from adults with the same problem. Try this."Any person who is incontinent or not fully potty trained must wear appropriate waterproof clothing when entering or being carried into the pool."

Rules should address conduct, not age. So provisions that prevent diving in a shallow end of a pool, for example, or that all items brought in must be removed, and warning that the pool is not supervised so those not able to swim should not enter the pool, wold likely be upheld by court.

Hope that helps. Enjoy the summer and happy swimming. Just make sure the filter is working properly.