The Paletz Law Blog

How to Avoid the Deep End of Fair Housing

Summer appears to finally be here in Michigan (fingers crossed). For many of us, that means hot dogs on the grill, the beach, and children playing outdoors. For landlords, summertime often means that amenities at the property, such as fitness centers, playgrounds, and most commonly pools, will see more activity. Consequently, considering the ever-shifting fair housing landscape, landlords should review their amenity rules for possible hidden fair housing violations.

A diving off point should be to look at the property’s pool rules. Age restrictions for pool use can be considered discriminatory based upon familial status, which is a federally protected class. It is fair housing’s position that any restrictions should be based upon skill level, not age.

For example, if a rule were to state that only individuals over a certain age, such as 16, are permitted in a pool, it could be seen from a fair housing perspective that such a restriction prohibits a 15 year-old highly competitive swimmer, yet permits a 30 year-old who has never had formal swim training. Therefore, language requiring individuals without suitable swimming skills be accompanied by a person with suitable swimming skills, regardless of age, would be more compliant for fair housing purposes.

There are other considerations to be mindful of relating to pools:

• Requiring individuals to be “potty trained” may also pose a familial status or disability issue. Although there is an obvious practical concern that swim diapers will leak and therefore jeopardize the safety of other pool occupants, it is fair housing’s position that a swim diaper, or other specific articles of clothing, can accomplish the same objective as perhaps requiring toilet training as a condition for pool use.
• Banning strollers or other childcare items from the pool area could also be considered familial status discrimination.
• Having specific “adult swim” hours, regardless of duration, could also pose a fair housing issue based upon an analysis similar to that of age restrictions.
• Prohibiting assistance animals access to the pool area could likewise be deemed discriminatory.

As it relates to fitness centers, the discriminatory nature of age restrictions has yet to be fully tested. There appears to be some judicial support for safety justifications related to this type of restriction, but they remain subject to challenge and potential liability.[1]

With playgrounds, age restrictions would be much more likely than fitness centers to be subject to scrutiny, obviously because children are the primary individuals that use playgrounds. Similarly, HUD has found that a requirement that children be supervised at all times while playing outside is discriminatory based upon familial status. [2]

So, in light of the above, what is a landlord to do? From a business standpoint, we certainly understand that it is more likely that individuals under a certain age do not have suitable skills for use of particular amenities, and that an age specific restriction is an attractive solution to reduce potential liability. However, the potential fair housing liability should be weighed against these considerations, perhaps in conjunction with consulting with the property’s insurance provider or requiring the tenant to sign a waiver. In addition, when doing rules or regulations for any amenities (and in general), basing restrictions around qualifications other than age or whether someone is a “child” should be strongly considered.

The Bottom Line: Unfortunately, these days landlords are faced with either taking on fair housing liability or general liability that could result from relaxed safety restrictions. Consulting with experienced legal counsel will help to keep your head above water.

[1] Landesman v. Keys Condo. Owners Ass’n, 2004 U.S. Dist. LEXIS 21746, 2004 WL 2370638; Barkhordar v. Century Park Place Condo. Ass’n, 2016 U.S. Dist. LEXIS 145076, 2016 WL 6102323

[2]https://www.nmhc.org/uploadedFiles/Articles/External_Resources/Fair%20Housing%20White%20Paper%202016-03%20FINAL.pdf