Is Adult Swim Legal?

Is Adult Swim Legal?

I get it, trust me.  You want to quietly relax by the neighborhood pool and forget about all of the other six million things that you have going on in your life.  The problem is that when you get settled in at the pool, someone’s 4 year-old is doing cannonballs in the pool near you and you are getting soaked.  “It sure would be great if adults had their own exclusive swim time,” you think.  As you leave you mention this to the pool manager or lifeguard and you are then informed that indeed your Association has created an adults-only swim time.  This sounds like just what you wanted.

It sounds so reasonable – especially since the adults pay the assessments which are used to maintain the pool – and yet the truth of the matter is that “adults-only” swim times are in fact illegal under the Fair Housing Act.

The Fair Housing Act prohibits discrimination in the provision of facilities based on “familial status.”  Basically, “familial status” exists where one or more persons under age 18 live with a parent or guardian.  Homeowner associations and condominium associations are subject to the provisions of the Fair Housing Act and as such are barred from discriminating in providing access to amenities based on “familial status.”

 Adult Swim in a community pool is illegal

A recent California federal case struck down an Association’s adults-only swim time as discriminating on familial status.  The Court reasoned that an adults-only swim time discriminates against other association members who have children by treating them differently from those without children.  This type of differential treatment in the provision of housing-related facilities is barred by the Fair Housing Act.

While the case may be appealed, other decisions in both Federal and State courts throughout the country have indicated a similar inclination toward finding in the same manner as the California court.

This does not prohibit the Association from adopting neutral restrictions that could effectively produce an adults-only swim time.  In fact, the California court specifically noted that enacting a “lap-swimming” pool time would not violate the Fair Housing Act.

As the existence of adults-only swim times appear to be on the rise, associations should consult their respective attorney regarding the validity of such a rule.

Written by: David H. Simpkins, Esq.