Condo Media - May 2012 - 33

by Frank A. Flynn, Esq.

POOL RULES
W
oman’s Dead Body Found in Massachusetts Pool After Two Days. It was a tragic accident to say the least. Many of us in the New England region remember the story of Marie Joseph, whose body was found in late June 2011 in the deep end of the Vietnam Veterans Memorial Pool in Fall River, two days after she disappeared under the cloudy surface. But as is often the case with tragedy, there is a lesson to be learned. Certainly, there are many advantages to having a pool on your common grounds. It is a great selling point to potential residents; it can certainly add to the happiness of your unit owners. However, it is important that trustees do not overlook the potential pitfalls of having a pool on your grounds. There is no need to panic. We are certainly not advocating that you immediately close your pool and fill it with cement. This article will help examine some of the issues — some of which you may not have thought of — that arise with having a pool. More importantly, it will provide you with guidance of how to avoid them. a few pages long and cover a lot of the basics. But do your rules cover those former residents who really liked your pool and feel that they can come back and use it at any time? Or the resident who likes to think he is somewhere on the French Rivera and swims a la natural? Don’t forget about the unit owner with the Chesapeake Bay retriever named Lou. Lou can’t walk by water without diving in. The point is that you may think that you have thought of every scenario that may come up, but truth be told, you probably have not. What about discrimination? Many sets of pool rules have restrictions, such as “No children under age 14 allowed!” Believe it or not, a set of rules should not include a restriction like this. This is an example of a violation of the Fair Housing Amendments Act of 1988. The Act was amended in 1988 to prohibit discrimination against any person in their use of a dwelling, based on their “familial status.” The Act defines “familial status” as a situation where one or more minors are domiciled with a parent, legal guardian or the designee of a parent or guardian. If a court finds that an association has adopted a rule that violates the Act, the association will be responsible for the costs of defending against the claim and may be responsible for paying monetary damages (actual and punitive), plus the attorneys’ fees of the complaining resident. A number of these cases have come up in recent years and courts have consistently held that restrictions on children’s use of a pool, where those same restrictions do

Potential Pitfalls for Communities

not apply to other adult residents, are prima facie cases of discrimination under the Act.

Rules Can’t Discriminate
In order to create a rule that does not discriminate, the trustees need to show two things: (1) that the pool rule is rooted in a “compelling business necessity,” and (2) that the rule constitutes the “least restrictive means” to achieve the desired effect. The first part is typically the easy one. Of course the condo has a compelling necessity to keep its pool safe and sanitary. The problem lies in achieving the least restrictive means. Lets look at some examples: No children under age 18 may swim in the pool without an adult supervisor present. This rule would likely be found by a court to be overly restrictive. The reason why is even a 17-year old certified lifeguard could not swim alone. Less restrictive means could achieve the same safety goals by requiring persons without swimming skills to be accompanied by a person with swimming skills, regardless of age. No baby strollers, walkers and playpens in the pool area. This would be discriminatory because even though the rule is based on safety concerns, the same goal could have been achieved by simply only allowing lounge chairs in the pool area. On the other hand, No inner tubes, balls and floats in the pool is not discriminatory because it covered

Not-so-Obvious Considerations
Having a pool on your grounds is a responsibility. More than likely, if you have a pool, you probably have a set of pool rules that you handed to all of your residents, possibly had them sign, or you have the rules posted outside the pool. But is this enough? I have looked at copies of some of these rules. Most of the time, they are

CONDO MEDIA • MAY 2012

Condo Media - May 2012

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