Many condominium and other common interest communities throughout Illinois have pools as part of the amenities for their members. Due to the nature of this amenity, and the nature of potential liability exposure, associations will generally have very specific rules and regulations that govern the use of these pools for the unit owners. For the most part, reasonable rules and regulations regarding the use of amenities such as pools are enforceable in Illinois—subject to a few very important limitations. One such limitation that must be considered by any board considering to regulate the use of a pool, or to create new restrictions regarding the use of a pool, is that any such restrictions or regulations must comply with the the Illinois Human Rights Act and the Federal Fair Housing Act.
Pool Rules and the Illinois Human Rights Act
In Illinois, it is a civil rights violation under the Illinois Human Rights Act “to refuse to make reasonable accommodations in rules, policies, practices, or services, when such accommodations may be necessary to afford such person equal opportunity to use and enjoy a dwelling.” 775 ILCS 5/3-102.1(C)(2). As a result, condo and common interest community associations must also be cognizant of their responsibility to accommodate the needs of disabled unit owners, and to provide reasonable accommodations if requested. Therefore, if a unit owner makes a request for a reasonable accommodation to utilize a common element (such as a pool), a community association has a duty to analyze the request and respond accordingly.
In Spiegel v. Illinois Human Rights Commission, 2021 IL App (1st) 192303-U, the plaintiff was a unit owner in a condo that had an outdoor pool that brought a claim unde the Illinois Human Rights Act. The condo association had passed a rule that stated that unit owners could bring furniture to the pool area for their own use, but those items had to be removed on a daily basis. A few months after the rule was passed, a unit owner started to complain to the condo association that Mr. Spiegel was leaving his chair overnight at the pool. As a result, the condominium association issued a citation to Mr. Spiegel, and initially denied his request to leave the chair at the pool when he was not present (Mr. Spiegel had claimed that he needed to leave the chair at the pool due to his medical condition). As part of the denial of Mr. Spiegel’s request, the condo association asked him for further information (more specifically, a letter from a doctor) to support any claim that a medical condition required him to leave his chair at the pool at all times.
Thereafter, the condo association provisionally allowed Mr. Spiegel to leave his chair at the pool, but again, requested independent third-party certifications that the chair he was using was an orthopedic lounge chair, that it was necessary for a physical disability, and how much the chair weighed. Mr. Spiegel provided certain information from doctors, but never answered the questions posed by the condo association, who later rescinded its provisional allowance of leaving the chair by the pool when Mr. Spiegel was not physically present.
Mr. Spiegel filed a claim of housing discrimination with the Illinois Department of Human Rights, alleging, in part, that the condo association failed to accommodate his disability. The Department of Human Rights dismissed Mr. Spiegel’s claim for lack of jurisdiction and lack of evidence to support the claim. As part of that denial, the Department of Human Rights also stated that the claim was asserted too late (there is a 1 year deadline for filing claims). Mr. Spiegel then asked the Illinois Human Rights Commission to review the findings of the Department of Human Rights, which sustained the Department of Human Rights’ dismissal of the claim, and a lawsuit was filed.
The Court sustained the findings of the Department of Human Rights and the Illinois Human Rights Commission. In doing so, the Court stated that: (1) there was no evidence presented to show that Mr. Spiegel’s symptoms were ameliorated by leaving the chair at the pool overnight; (2) none of the doctors’ letters confirmed that his disability required him to leave the chair at the pool to alleviate his disability symptoms; and (3) none of the doctors’ letters actually said that Mr. Spiegel’s disability required that he not move his chair. Once again, although the condo association was ultimately successful in the Spiegel matter, significant monies were spent by the condominium association in defending against the claim. In that case, it appears that the condo association tried to be reasonable at every step, but litigation ensued nonetheless.
Pool Rules and the Fair Housing Act
Additionally, a unit owner may be able to assert a claim against a community association for violating the Fair Housing Act. In Mehta v. Beaconridge Improvement Ass’n, 432 Fed.Appx. 614 (7th Cir. 2011), the Seventh Circuit held that a unit owner stated a Fair Housing Act claim against a homeowners’ association when the HOA purportedly retaliated against the owner and his family, after they complained that they were being mistreated due to their race, by not allowing his family to use community facilities, including the pool. Although this is an extreme example, it is important to realize that there are situations where a homeowners association may be held liable under the Fair Housing Act for allegedly discriminatory activities if access to amenities, such as pools, are restricted.
However, in the context of pools, the most common type of discrimination claim relates to familial discrimination under the Fair Housing Act. Pursuant to 42 U.S.C. § 3604(f), a community association may not discriminate on the basis of “familial status”, which includes discrimination against families with children. Familial status protection also applies to pregnant women and anyone securing legal custody of a child under 18. Since the 1988 Fair Housing Act Amendments were passed, there have been a number of lawsuits that have challenged swimming pool rules on the basis of familial status. Unfortunately, the outcomes of these cases often defy “common sense” and many community association boards may inadvertently violate the Fair Housing Act when creating pool rules.
In Iniestra v. Cliff Warren Investments, Inc., C.D.Cal.2012, 886 F.Supp.2d 1161 (California), a California apartment complex had a rule stating that “Children under the age of 18 are not allowed in the pool or pool area at any time unless accompanied by their parents or legal guardian”. The court found that the rule was “facially discriminatory”, in that it “treated children, and families with children, differently and less favorably than adult-only households”. Once the Court determined the rule to be “facially discriminatory”, the landlord was required to establish that the rule is the “least restrictive means to meet a compelling business necessity”. The court found that the landlord could not establish its burden and found that “a prohibition on unsupervised swimming which would prevent even a 17-year old certified lifeguard from swimming unaccompanied is overly restrictive”. The court further found that “while the Court recognizes the inherent dangers of unsupervised swimming, the requirement of parent or legal guardian supervision transforms this rule from one that could be reasonably interpreted as a safety precaution to one that simply limits children and their families”. Although the court offered no guidance regarding pool rules, it wrote the following concerning noise and adult supervision: “Indeed, children might make noise even if their parents are present. More appropriate policies might have simply prevented children from playing near gates or on the roof tops, or required all residents to maintain a certain noise level.”
In Llanos v. Coehlo, 24 F. Supp. 2d 1052 (C.D. Cal. 1998), a federal court found that a community association’s rules designating “family pools” and “adult areas” in the complex and prohibiting children from playing in and around adult areas of the complex were discriminatory.
A similar decision was reached by a federal court in the unpublished case of Landesman v. Keys Condo. Owners Ass’n, 2004 WL 2370638 (N.D. Cal. Oct 19, 2004), aff’d, 125 F. App’x 146 (9th Cir. 2005). The community association’s reason for restricting children from the main pool was that adults enjoyed using the pool for lap swimming and they preferred the relative tranquility of a swimming pool not filled with active, noisy children. However, the court ruled against the HOA.
In United States of America v. Plaza Mobile Estates, et al., 273 F. Supp. 2d 1084 (C.D. Cal. 2003), the court held that rules requiring adult supervision for children under 18 years old using recreational facilities in a community, including the community swimming pool, were discriminatory and violated the Fair Housing Act because they treated children, and thus families with children, differently and less favorably than adult-only households. In addition, the Court in Plaza Mobile Estates held that the ability to swim unsupervised is not solely dependent on age alone because in many cases young children can swim very well, while there are some adults who cannot swim. Similar to the Court’s finding in Iniestra, the Court in Plaza Mobile Estates further found that it was illogical, for instance, that a 17-year old certified life guard who is a strong proficient swimmer would be prevented from swimming if unsupervised in the community pool because he/she is not 18 years old, while an older adult who is not a proficient swimmer would be allowed to swim unsupervised in the community pool.
Recommendations for Community Association Pool Rules
From a community association standpoint, whenever rules and regulations related to a common area pool are being considered, it is important to consider whether the rules or regulations themselves may have a discriminatory effect. Even rules that may seem benign to a board may result in such a claim being asserted. Similarly, if a unit owner requests that an accommodation be made for a disability, even if that accommodation directly violates an existing rule or regulation, the HOA must take that request seriously and respond accordingly. When considering adopting pool rules, community associations should consider the following guidelines:
- Homeowners associations should refrain from having pool rules that are an outright ban children or require certain age limits to swim. Rather pool rules should be tied to swimming proficiency.
- Homeowners associations should refrain from having pool rules that require that a “parent” must be present. HOA’s could implement rules and regulations that indicate a supervising adult should be present for a swimmer that is not proficient.
- Homeowners associations should refrain from having pool rules that target a person’s particular attire that could be a basis for discrimination claims based on gender and/or religion. Pool rules should simply state that a community association has the right to remove an individual for any conduct that poses a safety risk to anyone in the pool area, for any immoral, improper, unlawful or offensive behavior or any behavior which becomes an annoyance or a nuisance to anyone in the pool area.
- Homeowners associations should refrain from creating adult only times, limiting children’s access to pools to only certain hours of the day and/or creating adult and family pools. Community associations can achieve similar results by having lap swimming for everyone during certain times of the day and/or areas of the pool.
- Homeowners associations should refrain from creating rules and regulations that state that “any children who are not toilet trained are not allowed to use the pool”. Instead, the pool rules can be rewritten to state that “any person who is not toilet trained or incontinent is required to use waterproof pants or diapers in the pool.”
Finally, as with all community association rules, pool rules should be put in writing, distributed to the membership and enforced consistently, non-discriminatory and if exceptions are made, to ensure that those exceptions are also consistently made. Given the complexity of pool rules under the Fair Housing Act, it is beneficial to have a community association attorney draft or review pool rules, or review requests for reasonable accommodations to ensure that a community association is in compliance with the Fair Housing Act and Illinois Human Rights Act. attorney can assist the association whenever such rules and regulations are being considered, or whenever a request is made for an accommodation, so that a lawsuit will hopefully be avoided.
Adam Toosley is a member at Hirzel Law, PLC and focuses his practice on real estate litigation, zoning and land use, construction, and financial services litigation. Over the course of his career, he has represented property owners, landlords, condominium associations, lenders, and all parties in the construction chain, handling all aspects of real estate-related disputes, including construction defect cases, payment and landlord-tenant disputes as well as real estate foreclosures, mechanic’s lien cases and fraud and business tort claims in state and federal court as well as in mediations and arbitrations throughout the United States. He is licensed in both Michigan and Illinois. He can be reached at (312) 626-4535 or at firstname.lastname@example.org.