Preparing Your Association for Pool Season
By: Marla J. Diaz, Esq.
As the weather starts to warm up, it is time for community associations to start planning for the pool season. Getting ready for the pool season does not just involve making sure that the pool company has removed the cover and filled the pool. For many associations, this is also the time of year that the associations review their pool rules to insure that they meet the association's needs and that they comply with the applicable fair housing laws. For associations with delinquent owners, it is also a time to contemplate suspending pool privileges for those owners.
If your associations decide to address these two pool related tasks, there are several guiding principles that they can use to make sure that they do so correctly and within the requirements of the law. This article is not intended to replace a careful legal review of your associations' pool rules or due process procedures, but can hopefully be used to make associations aware of the potential legal pitfalls associated with enforcing pool rules and suspending pool privileges.
Fair Housing Laws and Pool Rules
All residential community associations must comply with the federal Fair Housing Act (the “FHA”), the state fair housing laws, and often with human rights ordinances adopted by their local government; all of which prohibit discrimination in community associations. While it is a good idea to familiarize oneself with the fair housing laws applicable in the jurisdiction in which your community association is located, certain general requirements found in the FHA apply to all jurisdictions.
The FHA prohibits community associations from discriminating against any of the protected classes in the provision of services or the use of its facilities. Practically, this means that a community association cannot adopt or enforce any rules or regulations that limit a person's use of a service or facility of the association based on such person's race, color, religion, sex, national origin, familial status, or disability.
For pools, most associations find themselves unintentionally running afoul of the FHA out of a concern for the health and safety of their younger patrons. Associations often adopt rules that:
- Require children to leave the pool for 15 minutes of each hour;
- Require children to be supervised while at the pool;
- Prohibit children from horseplay or disruptive conduct at the pool; and
- Require children who have not yet been potty trained to wear special diapers.
These types of rules are generally well-intentioned, but unfortunately, a good intention is not a defense to a discrimination claim under the FHA.
Absent a legitimate health and safety concern, it is unlawful for an association to have a pool rule that differentiates between the way an adult uses the pool and the way a child uses the pool. The 15 minute break rule, for example, is not related to a legitimate health and safety concern because there is no evidence that this break is necessary for children to safely use the pool. Conversely, a rule requiring children under a certain age to be supervised is more legitimate. For example, under Virginia principles of contributory negligence, children under the age of 12 are legally incapable of looking out for their own health and safety. If the law says children cannot keep themselves safe, then it is reasonable to require that children be supervised at the pool.
Associations can avoid allegations of discrimination by focusing their rules on the conduct they are trying to prevent, instead of the class of people that they believe are most likely to act badly. For example, an association can adopt a rule prohibiting any incontinent person from using the pool without wearing a swim diaper. This addresses the conduct of concern, ie. peeing in the pool, without focusing the rule on a protected class. Similarly, an association can adopt a rule prohibiting all persons from horseplay or disruptive conduct at the pool. It may be more probable that children will violate this rule, but the association's true interest is in preventing people from acting in a way that could endanger themselves or others. By focusing on conduct and not a protected class, associations can prevent the harm that they are most concerned about without subjecting themselves to claims of discrimination.
If your associations have not recently reviewed their rules for compliance with fair housing laws, the start of the new pool season may be a good opportunity to do so. If there are any questions raised about a particular rule and the fair housing laws, legal counsel is always available to review the rule at issue.
The Friday before Memorial Day is a trying day for community association professionals because of delinquent owners demanding pool passes. This day can get even more complicated, however, when it comes to light that the association lacked the authority to suspend such privileges or failed to follow its due process procedures in suspending such pool privileges. Suspending pool privileges presents an excellent opportunity for associations to encourage delinquent owners to bring their accounts current. However, in order for the associations to effectively use this enforcement power without incurring liability for themselves, the associations must make sure that they have authority to suspend privileges and that they are following the due process requirements prior to withholding pool privileges.
Determining whether a community association has the authority to suspend pool privileges requires a careful consideration of the statutes and an association's governing instruments, but it is a question that must be considered before withholding pool passes. Community associations do not all have the right to suspend privileges. In some jurisdictions, the statutes do not automatically provide that right to all associations, and not all governing instruments permit suspension of privileges . If your association has any doubt, it is worth asking legal counsel for a quick analysis on the right to suspend pool privileges.
Once it has been determined whether pool privileges can be suspended, the association must understand the steps that it must follow before suspending those privileges. For most community associations, the demands of either their governing instruments or state statute require that certain due process procedures be followed before the association can suspend an owner's pool privileges. An association may not withhold an owner's pool passes merely because that owner is delinquent. In Virginia, the Condominium Act in Va. Code Ann. § 55-79.80:2 and the Property Owners Association Act in Va. Code Ann. § 55-513 provide that privileges can be suspended if an owner is more than 60 days delinquent in the payment of assessments, but only if the owner has first been given notice of the delinquency, an opportunity to cure the delinquency, a hearing before the board of directors, and notice of the suspension. Md. Code Ann. § 11-113 of the Maryland Condominium Act similarly requires notice, an opportunity to cure, and a hearing before suspending privileges. Neither Delaware's nor the District of Columbia's Condominium Act expressly require due process before suspension of privileges, but D.C. Code Ann. § 42-1903.08(a)(11) and Del. Code Ann. Tit. 25 § 81-302(a)(11) require notice and a hearing prior to imposing a fine for violation of the condominium instruments. It appears, therefore, that there is an intention for some due process before sanctions, such as a suspension of privileges, are imposed against an owner.
Governing instruments for many associations have their own due process requirements which can add additional requirements to statutory rules, or can parallel the statutory requirements. Only rarely will an association have no due process requirements before it may suspend privileges. Even then, however, associations can benefit from instituting basic due process procedures for suspending pool privileges.
The goal of suspending pool privileges is to get owners to cure their delinquencies. Advance notice of pool privilege suspension will induce many owners to resolve their delinquency early. Waiting to advise owners of the suspension until the day they come to pick up pool passes creates embarrassment for owners and contentious encounters for managers. Often owners that are not told of the suspension until the last minute will be unable to gather the funds to pay off the delinquency. If your association is contemplating suspending pool privileges or withholding pool passes, it should consider what authority it has to suspend privileges and what due process obligations it has before suspending those privileges. Planning the due process procedures for suspension of pool privileges in advance will serve the dual goal of getting delinquencies paid early and avoiding a difficult Friday before Memorial Day.
If your association would like legal counsel to review either its pool rules or its due process requirements and procedures prior to the start of pool season, please do not hesitate to contact counsel at Whiteford, Taylor & Preston, LLP.