Can a homeowners association prohibit children from using the spa? By Cynthia L. Bashore, Esq. Mr. and Mrs. Languid are sitting in their community spa at the Waterscape Homeowners Association, relaxing in the warm bubbling water after a hard day's work. Mr. Languid appreciates the peace and quiet after his day working construction on the freeways, while Mrs. Languid enjoys the hot jet steam on her back after a long day of delivering packages for UPS. Shortly after the Languids slip into the community spa, the Youngens, who have three young children, enter the pool and spa area. The children, wound up from a day at school, laugh and giggle and become increasingly excited at the prospect of splashing and playing in the warm water of the Jacuzzi. The Languids' relaxing evening at the Jacuzzi comes to a screeching halt. The next day, the Languids write a letter of complaint to the Waterscape Homeowners Association and request that the board adopt a rule prohibiting children from using the spa. In support of their argument, the Languids assert that the spa is too small to accommodate children jumping and playing, is too hot and poses a medical risk to the children, and the children have the option of playing in the large pool located near the Jacuzzi. The board considers the Languids' arguments as well as letters previously received from other owners desiring that children be prohibited from using the spa. The Waterscape CC&Rs contain a provision that specifically allows the board of directors to enact reasonable rules regulating the common area facilities. The board determines, without first consulting its attorney, that it is within its power and discretion to prohibit children from using the spa based upon health and safety reasons, the members' rights of quiet enjoyment and its rule-making authority as set forth in the CC&Rs. Is the Waterscape Homeowners Association unlawfully discriminating against the Youngens in violation of federal and state law, which prohibits discrimination based upon age and discrimination against families with children? The answer is yes. Federal law The 1988 Federal Fair Housing Act (FHA) prohibits age discrimination regarding the use of common facilities. The FHA thus prohibits associations from limiting and/or precluding children's use of the spa. In addition, federal law provides that a restriction which creates an inequity for families with children under the age of 18 years is deemed unreasonable. Please note, however, that if an association has more than one community spa, it may be reasonable for the association to prohibit children from using one of its two or more spas, that is, one spa may be designated for "adults only" and the other spa may be designated for "adults and children." Such a restriction would not discriminate based upon age, since an alternative spa is available for children to use, and would not create an inequity for families with children. Prior to an association enacting such a rule, we strongly recommend that the board consult with the association's legal counsel to ensure that the implementation of the rule in your particular community will not violate the Fair Housing Act. State law The State of California has adopted specific guidelines regulating the use of pools and spas. Similar to federal law, state law prohibits restricting the use of pools and spas in a fashion that discriminates on the basis of age or creates an inequity for families with children. California counties have the authority to adopt their own regulations so long as the regulations do not conflict with state or federal law. For example, Riverside County has adopted its own pool and spa restrictions which are tailored after state regulations. An association may adopt rules restricting the use of the community spa for all residents, provided the association's CC&Rs grant the board such rule-making authority. For example, an association may enact a rule indicating the hours during which the spa may be utilized or a rule indicating certain "quiet enjoyment" hours at the spa whereby the association may regulate noise levels at the spa without specifically excluding children. Whatever rule an association chooses to implement relating to the use of the community spa, the association must use caution and should consult with legal counsel to ensure it is not discriminating based upon age and is not creating an inequity for families with children. Cynthia L. Bashore, Esq. is with Peters & Freedman in Encinitas, CA << Back to Avalon Samples and Articles Page Portions of this page Copyright 2004 Avalon Management Group Inc. All Rights Reserved, other content may be copyrighted by the respective author(s.)