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
