Offering the right amenities can give you a decisive edge in attracting new tenants and providing current ones a better rental experience. Some of the most sought-after amenities are the ones that tenants enjoy after they step out of their apartments, such as fitness centers, spas, pools, game rooms, co-working space, outdoor dog parks, common gardens, lounges, movie centers, putting greens, and even recording studios. Such amenities are typically located in the common areas of the property, either indoor or outdoor, and shared by all tenants. 

For these very reasons, landlords must lay down rules to ensure proper use of those facilities. But implementing use rules exposes you to risk of liability under fair housing laws, particularly claims of discrimination against families with children. You can get into trouble even when your sole purpose in creating the rules is to ensure safe, sanitary, and respectful use of the amenity. The key to compliance is avoiding such inadvertent discrimination. 

This month’s lesson will show you how to do that. First, we’ll explain the laws and how what may seem like perfectly neutral use rules may have discriminatory effects. Next, we’ll outline a general compliance strategy for crafting use rules that don’t run afoul of the laws. To help you implement the strategy, we’ll tell you about the most common discrimination pitfalls involving amenity rules and what you must do to avoid them, before wrapping up with a Coach’s Quiz enabling you to apply the lessons to real-life situations and determine how well you’ve learned the material.  

WHAT DOES THE LAW SAY?

Section 3604(b) of the federal Fair Housing Act (FHA) bans discrimination “against any person in the terms, conditions, or privileges of sale or rental of a dwelling, or in the provision of services or facilities in connection therewith, because of” family status. Section 3604(f)(2) includes parallel language banning discrimination against a person with “a handicap.” 

Regulations from the U.S. Department of Housing and Urban Development (HUD) flesh out the statute by making it illegal to “deny or limit services or facilities in connection with the sale or rental of a dwelling” based on family status or disability (24 C.F.R. § 100.65(b)(4)) (emphasis added). 

While the rules sound straightforward, things get tricky when you apply them to real-life situations. The problem stems from the fact that there are two basic varieties of discrimination. 

Direct discrimination occurs when a landlord deliberately excludes persons in protected classes because of their race, religion, sex, etc. Example: banning Muslims from using the community pool or fitness center.

Disparate impact discrimination is indirect and subtle—so much so that landlords may engage in it without evil intentions or recognition that they’re doing anything wrong. Such discrimination occurs when rules, policies, or practices that are neutral on their face have the effect of excluding a protected group. Example: A rule limiting occupancy to two people, while designed to prevent overcrowding, could be disparate impact discrimination on the basis of family status to the extent it has the effect of excluding married couples with newborn babies.

How disparate impact claims work. Understanding how disparate impact claims work in actual legal proceedings can help you prevent them. The moment of truth often occurs at the start of the proceedings when the landlord moves for “summary judgment”—that is, asking the judge to toss the claim because it’s legally invalid. To survive the motion and get to trial, the plaintiff must show that the rule, policy, or practice in question had a discriminatory effect. If the plaintiff meets this burden, the landlord can still get the case dismissed by showing that the policy serves a legitimate, compelling purpose and does so in the least restrictive means possible. 

Summary judgment is the turning point because it determines whether the case gets dismissed or the landlord has to face trial. In the latter situation, the landlord faces pressure to pay money to settle the case to avoid the risks of trial. And that puts the plaintiff in a strong negotiating position.

DISPARATE IMPACT COMPLIANCE STRATEGY 

The key to compliance is to ensure that your own rules for use of common amenities don’t expose you to liability for disparate impact discrimination. The bad news is that some use rules are bound to have a negative impact on protected groups, such as pool rules to ensure the safety of children. The good news is that use rules that have discriminatory effects may still be permissible if you can show that they: 

• Serve a legitimate, nondiscriminatory, and compelling purpose;
• Are necessary to accomplish that purpose; and
• Are reasonable and no more restrictive than they must be to meet the health and safety objective.

Protecting health and safety are recognized as compelling and legitimate purposes. So, it usually boils down to showing that your own rules are the reasonable and least restrictive way to ensure health and safety. Reasonableness is based on objective criteria. Examples of objective sources that may help you justify health and safety rules with discriminatory effects include: 

State & local laws: Amenities rules are easier to defend if they’re based on requirements under health, building, fire, sanitation, or other state or municipal codes, such as a local law that bans children from using certain kinds of fitness equipment without adult supervision. 

Manufacturers’ warnings & guidelines: Manufacturers and distributors of hot tubs, fitness machines, shredders, and other equipment found in common use amenities may advise that their products aren’t intended for and shouldn’t be used by people under a certain age or who have certain medical conditions. You should incorporate these restrictions into your own use rules while maintaining copies of the manufacturers’ instructions to document your reasonable safety purpose for doing so. 

Industry standards: While not legally binding, attorneys suggest that industry standards offer guidance on what pool, gym, business center, and other common amenity use rules are reasonable. 

8 DISPARATE IMPACT AMENITIES USE RULES PITFALLS TO AVOID 

Translating these principles to actual operations starts with the understanding that it’s not establishing health and safety rules but the way you draft them that’s going to get you into hot water. The most common mistake landlords make is creating rules that go too far while overlooking alternatives that would achieve the same health or safety objective in a way that’s less restrictive to families with children and the disabled. With that in mind, here are eight pitfalls to avoid.  

Pitfall #1: Banning Children from Using the Amenity

Pitfall: The easiest way to prevent kids from drowning in your swimming pool, getting hurt in your fitness center, etc., is to bar them from using the facilities. But in addition to bordering on direct discrimination, such a categorical ban is an unacceptably broad method of protecting health and safety. 

Example: A California federal court held that a pool rule stating that “under no circumstances may children play” in the pool area walkways was “facially discriminatory” because it treated children less favorably. While child safety was a compelling goal, the rule wasn’t the least restrictive means of ensuring it. If the landlord was concerned about safety in the pool walkways, the court reasoned, it should have banned all tenants and not just children from playing on them [Rojas v. Bird, 2014 WL 260597, at *2 (C.D. Cal. Jan. 10, 2014)].

Keep in mind that de facto bans are just as illegal as “no-children-allowed”-type express rules.

Example: Tenants of a Florida community had to get special key fobs from the landlord to access the fitness center and other common areas and amenities. The landlord issued the key fobs only to adult tenants. Three families with teenage kids under age 18 complained to HUD of family status discrimination. HUD took the case to federal court. Facing the risk of trial, the landlord agreed to shell out $260,000 in damages and penalties to settle [United States v. Concord Court at Creative Village Partners, (M.D. Fla.), 2022].   

Solution: The good news is that landlords do have leeway to regulate use of amenities by minor children. Explanation: A 1992 HUD memo clarifies that the FHA doesn’t ban housing providers from imposing “reasonable health and safety rules designed to protect minor children in their use of facilities associated with the dwellings,” such as requiring adult supervision of young children using a swimming pool without a lifeguard. The internal memo instructs HUD lawyers dealing with complaints alleging that rules limit the ability of families with children to use common amenities to consider the facts of the specific case, including: 

• The rationale for the rules;
• The degree of limitation the rules place on families with children;
• Whether the rules are mandated by a state or local requirement; and
• If so, whether those state or local requirements are reasonable.

Pitfall #2: Requiring Children to Use Separate Facilities 

Pitfall: A seemingly more benign way to exclude children or other protected groups from common amenities is to allow them to use a separate facility. For example, communities with multiple pools may be tempted to have separate “family” and “adult” pools to enhance safety and furnish adult tenants a place to swim in peace and quiet. This kind of segregation is highly problematic, especially when the “adult” facilities are more numerous, in better locations, or superior in quality. 

Example: A tenant with young children sued her California condo community for not letting children under age 18 use the pool. While sympathetic to the desires of adult tenants to swim laps without being distracted by kids, the federal court allowed the tenant to take her family discrimination case to trial. Catering to the discriminatory preferences of adult residents is no more than having separate pools for people of different races, nationalities, or religions, the court reasoned [Landesman v. Keys Condominiums, U.S. District Court N.D. California, unreported].

Solution: It’s okay to have playgrounds, game rooms, kiddie pools, and other amenities designed for kids. What you can’t do is have separate versions of the same amenity segregated by protected class, such as one pool that must be used by families and another open to everybody else. Bottom line: Segregation is not an acceptable way to ensure children’s safety.  

Pitfall #3: Barring Children During Specific Hours or Windows 

Pitfall: Excluding kids, families, or other protected classes for only a limited period may be just as problematic as a blanket ban, such as by establishing “adult swim” times when kids must get out of the pool so the adults can have it all to themselves. “Rules which restrict children from using swimming pools during certain hours could prevent families with children from having full use and enjoyment of the premises,” notes the 1992 HUD memo. 

Example: A Florida community was fined $10,000 for adopting a rule allowing children access to the pool for only three hours per day. Adding insult to injury, the window for kids was 11 a.m. to 2 p.m., meaning that parents would likely be at work and their kids in school during the only three hours the pool was open to them [HUD v. Paradise Gardens, Case No. HUDALJ 04-90-0321-1 (HUD ALJ, 1990)]. 

Solution: Reserving a time for adults to use the pool or other amenity without kids may be justifiable if the window is short and remains open at reasonable times, like when a lifeguard can’t be on duty or after bedtime hours when kids are usually asleep. However, the rule is illegal if there are less restrictive ways to accomplish the purpose. 

Example: An “adult swim” rule would be an unduly restrictive way to provide adults “laps time” if the same purpose could be achieved by keeping lanes clear for anybody who wants to swim laps. 

Example: A mandatory 15-minute no-swim break to prevent overexertion should apply to all swimmers, not just children. 

Pitfall #4: Requiring Children to Be Supervised by a Parent or Adult Guardian

Pitfall: Adult/parent supervision requirements are the leading source of amenity-related family discrimination complaints. While pools are the most common example, the adult-supervision conundrum applies equally to other amenities that may be dangerous to children, such as fitness centers, spas, hot tubs, and shooting ranges. As HUD acknowledges in the 1992 Memo, unlike full or partial bans on children’s use, “requiring a responsible adult to supervise young children and provide written designation of an adult supervisor are policies which appear more tailored to protect legitimate health and safety interests and appear less problematic.” 

But, again, it’s how you draft the rule that determines compliance. The reason most young children need supervision is because they can’t swim. But many adults can’t swim, either. The danger of swimming unsupervised, in other words, stems not from how old a person is but on their lack of proficiency in swimming. Moreover, while supervision may be necessary, it doesn’t necessarily have to come from a parent or adult. Once you introduce age and family relationship into the equation, you take the supervision rule to places it shouldn’t go.  

Example: The parents of three young children sued their California landlord for adopting 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 federal court ruled that the rule was too restrictive. A “prohibition on unsupervised swimming which would prevent even a 17-year-old certified lifeguard from swimming unaccompanied is overly restrictive,” reasoned the court. While recognizing “the inherent dangers of unsupervised swimming,” the court concluded that requiring that a parent or legal guardian to supervise “transforms this rule” from a legitimate safety precaution to an unjustified restriction on children and their families” [Iniestra v. Cliff Warren Investments, Inc., C.D. Cal. 2012, 886 F.Supp.2d 1161].

Solution: The least restrictive and most non-discriminatory way to accomplish the safety objective of the supervision rule is to frame the rule in terms of proficiency and the ability to supervise responsibly. Options: 

• Require supervision of not just children of certain ages but any person who isn’t proficient to use the amenity safely;
• If you do use age requirements, look at local laws regarding unsupervised children in determining a suitable age restriction; and
• Instead of a “parent,” “guardian” or “adult,” require supervision by a proficient person regardless of age or family relationship, which may include a properly credentialed individual under age 18. 

DEEP DIVE:

Adult Supervision Rule Doesn’t Promote Safety

Adult supervision rules may discriminate when they don’t really promote safety. For example, a Missouri landlord tried to evict a tenant for letting her 16-year-old daughter use the on-site fitness center, computer room, and movie theater in violation of community rules banning access to those amenities by children under age 18 unless accompanied by an adult tenant. HUD found reasonable cause to believe that family status discrimination had occurred, and the case went to federal court, resulting in a $16,000 settlement against the landlord [United States v. Orchard Village, LLC, et al. (E.D. Mo.) (2022)]. Attorneys suggest that the case might have gone the other way had the adult supervision rule been limited to the fitness center. However, applying a rule designed to ensure safety to non-safety-sensitive settings like the movie center and computer room made it unreasonably broad. 

Pitfall #5: Requiring Only Kids or Disabled Persons to Pass a Proficiency Test

Pitfall: Some landlords require tenants or guests to demonstrate that they’re capable of using the facility without supervision, such as by passing a swim test. Such a rule may have discriminatory effects if it’s not drafted properly.

Solution: Mandatory proficiency tests are generally okay as long as you require all unsupervised users and not just kids or persons with disabilities to pass them. In addition, the test should come from a recognized safety association or authority and be administered by a competent person, such as a swimming proficiency test administered by a competent lifeguard or swim instructor.

Pitfall #6: Banning Children Rather Than Their Behavior   

Pitfall: It’s perfectly legitimate to try and prevent children from creating safety hazards or disturbances in and around lounges, pools, fitness facilities and other common amenities. But adults may also engage in bad behavior, too. Accordingly, rules of behavior become problematic when they apply only to kids.

Example: The owner of a 44-unit California apartment community was fined $25,000 for implementing “house rules” banning children from riding bicycles, using skateboards, or playing with toys in pools and other common areas. While the rules seemed reasonable on their face, they discriminated against families with children because they applied only to children and there were no corresponding rules banning specific kinds of behaviors by adults in those areas [California Dept. of Fair Employment & Housing, April 10, 2018]. 

Solution: Make sure your use rules target behavior, not the people you think are likely to engage in it. Appropriate behavior rules for common amenities may include a ban on: 

• Running;
• Use of profanity or other offensive language;
• Being unreasonably loud or noisy; 
• Abusing or damaging the equipment; and
• Letting non-tenants use the facilities without permission. 

Also be careful with rules regulating toys:

• Wrong: “No children’s toys are permitted in the community gardens”;
• Right: “No bikes, trikes, toys, stuffed animals, balls, water pistols, bulky bags or knapsacks, or similar items are permitted in the community gardens.”

Coach’s Tip: Age-related restrictions on the use of playground, pool, fitness center, or other equipment may be justified if they’re consistent with manufacturers’ instructions, generally accepted apartment industry standards and safety standards from health and safety organizations like the U.S. Centers for Disease Control. For example, requiring children to be at least 14 to use a slide would likely be okay if the manufacturer specifies that the slide isn’t safe for children ages 13 and under. 

Pitfall #7: Banning Children Who Aren’t Toilet-Trained 

Pitfall: Banning people from deliberately relieving themselves in the pool, floors of the fitness center, etc. is a legitimate sanitation rule. But banning young children who aren’t toilet-trained from the pool (or other amenity) is discriminatory because: 

• It doesn’t account for incontinent adults who may also soil the pool; and
• You can accomplish the sanitation purpose without totally banning pool use, such as by requiring children to wear waterproof pants in the pool. 

Solution: Rather than banning “children,” “children in diapers” or “children who aren’t potty-trained” from entering the pool, require any person who’s not toilet-trained to wear waterproof diapers under their swimsuits. 

• Wrong: Children who are not toilet-trained are prohibited from entering the pool;
• Right: Any person who is incontinent or not fully potty trained must wear appropriate waterproof clothing when entering or being carried into the pool.

Pitfall #8: Banning All Animals 

Pitfall: Although family status discrimination is the primary issue, common amenities use rules may also run afoul of fair housing disability protections. The most common example is a rule that categorically bans all animals from pools, fitness centers, etc. Explanation: The FHA requires landlords to make “reasonable accommodations in rules, policies, practices or services. . . necessary to afford a person with a disability the equal opportunity to use and enjoy a dwelling.” HUD, the DOJ and the courts interpret “reasonable accommodations” as including the duty to exempt “assistance animals” from pet bans and restrictions. 

Solution: If your use rules ban animals in the interest of sanitation, carve out an exception for “assistance animals.” If your amenity is a “public accommodation,” such as an on-site fitness club open to the public that tenants may use for free or a special discounted rate, you’ll have to accept “service animals.”  

But you need make only “reasonable” accommodations and that an accommodation isn’t deemed “reasonable” if it would cause harm to others. You also have the right to require tenants to ensure that their animals comply with all use rules when they’re in the facility.

DEEP DIVE:

Assistance Animals v. Service Animals

“Assistance animals” include dogs or other common domestic household animals that do work, perform tasks, provide assistance, and/or provide therapeutic emotional support for individuals with disabilities. Significantly, assistance animals need not have any specific certification or training. 

By contrast, under the Americans with Disabilities Act (ADA) duty to accommodate applies only to “service animals” trained to do work or perform tasks for the benefit of an individual with a disability. The ADA applies to facilities that are deemed “public accommodations,” which may include pools, fitness centers, and other apartment community facilities that are open not only to tenants and their guests but also members of the public. 

The Right & Wrong Way to Phrase Common Use Amenities Rules

* Change “assistance animals” to “service animals” if the amenity is a public accommodation under the ADA