By Deborah Goonan, Independent American Communities
It’s summer, and in most of the country, we’re having a brutal heat wave. Time to cool off in that sparkling community pool at your condo or homeowners’ association, right?
Well, for New Jersey condo owners Steve and Diane Lusardi, that’s going to be a bit of a challenge, at least if they want to swim together.
The majority of owners in A Country Place condo association, located in Lakewood, are Orthodox Jews, and their faith prohibits men and women from bathing together. So the Board recently approved a new pool schedule, with time blocks for “Men only” or “Women only” swim time.
Open swim for both sexes is scheduled for limited hours: Sunday through Friday from 1 – 3 PM, and on Saturdays from 8 AM – 9 PM.
Violators of the new swimming policy are fined $50 apiece.
Sexes separated at Lakewood pool
LAKEWOOD – A dip with his wife in their condominium association’s outdoor pool has landed Steve Lusardi in hot water.
The 69-year-old retired postman, a resident of A Country Place, incurred a $50 fine earlier this summer for violating the 376-unit adult community’s restrictions on mixed-gender swimming.
In deference to the modesty norms of religiously conservative Orthodox Jewish residents, who now constitute the majority of homeowners at A Country Place, the community’s elected board of directors has curtailed the times when men and women can use the pool together. Jewish law prohibits men and women from bathing together.
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Non-Orthodox homeowners are understandably upset. It’s not that they aren’t sensitive to Orthodox religious beliefs. The problem is one of fairness. After all, swim hours for couples that want to enjoy the pool togehter are severely limited. Many owners are reluctant to sit poolside in the hottest part of the afternoon.
Orthodox or not, all condo owners are required to pay the same monthly assessments to support ongoing maintenance of the pool.
Democracy at work?
This story is a reminder of the realities of life in common interest, Association Governed Housing. As a property owner, you are often compelled to continue to pay for amenities you rarely, if ever, use.
Of course, management for a public community pool would never get away with gender-restricted swim times.
But a condo, cooperative, or homeowners association is considered a ‘private’ organization, subject to self-governance with very limited protection of civil liberties.
And that highlights another fundamental flaw. When ‘democracy’ exists in a mandatory membership Association, 51% of owners can, and often do – overrule the desires of the other 49% of owners.
Yes, there are also examples of Associations that operate more like oligarchies or dictatorships. It’s really a matter of how the corporate voting interests are allocated. That’s why a developer or an investor group that still owns many units will tend to exert autocratic control over all other members.
Either way, if you happen to be the owner in the minority, you’re probably not going to be happy when your rights are ignored.
Swimming Pools Clubs
Before housing communities started providing swimming pools for their own residents, most community pools were open to the public.
However, there were also some enterprising entrepreneurs who created private swimming pool clubs. Some of these still exist today. Similar to a private fitness club membership, swim club consumers can opt in or opt out of membership.
The general concept: as a consumer, if a business is not meeting your expectations, you vote with your feet and walk away.
Obviously, the Lusardis cannot easily walk away without selling their condo first!
How to solve this dilemma?
According to the article, the current condo board seems reluctant to collaborate on a swim schedule that considers the desires of non-Orthodox members. Unfortunately, there’s no legal requirement for HOAs to reach a consensus on any given issue.
However, if the condo association remains unwilling to collaborate, the board could theoretically decide that pool membership is optional rather than mandatory. Then the Lusardis and others who don’t want to use the pool can opt out, and spend their money on a private club membership elsewhere.
Of course, that would require adjustment of monthly assessments so that only pool members would pay for its upkeep. How likely is it that the members who regularly swim in the pool will agree to release some condo owners from their current obligation to pay for a pool they might never use?
It should be noted that some associations in planned communities do offer optional membership to a Country Club, fitness club with a pool, tennis, golf, etc. Golf communities are a prime example. However, now that golf is waning in popularity, there often aren’t enough voluntary memberships among HOA members to keep the golf course in business. As a result, many golf course owners are exiting the business and looking for other ways to use their land – including development of additional residential or commercial property.
The truth is, in many communities, if the minority of members who regularly use recreational amenities were the only ones paying to maintain them, their membership costs would be unreasonably high. That’s why the majority of Association Governed residential communities require all members to pay for amenities, whether they benefit from them or not.
It would appear that the US Fair Housing Act and related state Acts prohibiting discrimination override the apparent discriminatory practice of segregating male from female swimmers in the HOA’s swimming pool. The “majority” pool restrictions appear to represent, both in purpose and effect, religious discrimination and gender preference. All other religious groups, including non-orthodox or non-religious, are having their rights curtailed on the basis of religious and gender-based preference. The FHA prohibitions against discrimination (which are applicable to Homeowners Associations) includes the following: “It shall be unlawful to discriminate against any person in the terms and conditions, or privileges of sale or rental of a dwelling, OR THE PROVISION OF SERVICES OR FACILITIES IN CONNECTION THEREWITH (emphasis added) because of race, religion, sex, familial status, or national origin.” 42 USCA S 3601, et seq. (If the majority on the Board of Trustees voted to mandate racial segregation in the swimming pool instead of gender segregation, would there be any doubt that the HOA would be unequivocally in violation of the law?) The FHA and various state statutes also provide for rather severe sanctions and fines which can be imposed on a Homeowners Association found in violation of the anti-discrimination laws.
I realize that HOAs are an unusual, often inexplicable, phenomenon in the law; however, if I am wrong with regard to my interpretation–that the Fair Housing Act’s prohibitions against gender and religious discrimination override the HOA majority-based pool restrictions– please advise?