Legal Update: How Changes to Periodic Garnishments in Michigan Affect Condominium Collection Practices

William Kolobaric_8x10@300The Board of Directors for condominium associations are often faced with delinquent co-owners who fail to pay assessments or fines. Typically, an Association will seek voluntary compliance with a co-owner to obtain payment, but sometimes the Association is forced to pursue a judgment against the delinquent co-owner. After the Judgment is entered, the Association may pursue collection efforts against the co-owner by sending a periodic garnishment to the co-owner’s employer.

On April 16, 2015, Michigan Governor Rick Snyder signed into law House Bill 4119 (the Bill), which affects periodic garnishments sent to employers. The Bill amended MCL 600.4012 by making the following changes, which became effective immediately:

  • Periodic garnishments will now remain in effect until the balance of the judgement is satisfied rather than having to renew the garnishment every 182 days as previously provided. MCL 600.4012(1);
  • The garnishee fee has risen from $6.00 to $35.00. MCL 600.4012(12);
  • The periodic garnishment is not valid or enforceable unless it is served in accordance with the Michigan Court Rules. MCL 600.4012(4);
  • Although default judgments will still be allowed against an employer that fails to fully comply with a periodic garnishment, creditors will be required to give employers ample notification, via a multi-step process, when they are not in compliance. Employers will then have 28 days to rectify the situation and after entry of a default but prior to entry of a default judgment. MCL 600.4012(6)-(8); and
  • Even if a default judgment is entered against an employer, the employer will have 21 days after entry of the default judgment to petition the court to limit the amount of the judgment to the amount that would have been withheld if the garnishment had been in effect for 56 days, rather than entering the judgment for the full amount of the debt. MCL 600.4012(9)-(10).

How the Recent Changes Affect Your Association

The good news for condominium associations is that only a single writ of garnishment to the delinquent co-owner’s employer will be needed to pursue collection of the entire judgment. This translates into savings to the Association whereby it will no longer incur additional attorney fees and costs in having to prepare and reissue supplemental writs of garnishment if the initial garnishment and/or subsequent writs expired with a balance still due and owing on the judgment.

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However, there is a “but” to the recent amendment. Since priority of payment on the garnishment is established in the order that the garnishments are received—except for child support withholding orders and tax levies, which have priority over a creditor garnishment order regardless of when received—it is imperative for Board of Directors to act promptly in pursuing garnishments against a delinquent co-owner. If another creditor files a wage garnishment first, the Association may have to wait years until the first garnishment is paid off.

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How the New Law Changes the Employer’s Responsibility

Under the former garnishment provisions, if an employer failed to timely respond to a writ of garnishment, the Association’s attorney could pursue the employer for the full amount remaining due on the judgment set forth in the garnishment against the employee. Thus, the old statute provided a hefty incentive for employers to comply with garnishment requests. Under the new changes to the statute, the Michigan legislature made it much more difficult to hold an employer liable for failing to comply with a garnishment request related to its employees. As described above, the Michigan legislature added numerous notice provisions, allowed the employer 28 days to rectify a default and further allowed an additional 21 days to petition the Court to limit the total amount.

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How the New Law Changes a Former Collection Tactic

Under the former garnishment provisions, garnishments only lasted 182 days and could not be renewed until the 182 days had expired. A clever collection attorney for the Association could establish writ priority by submitting the Association’s garnishment a couple of days prior to the expiration of the writ that had priority. Thus, the Association would often obtain at least some funds during the year from the co-owner’s employer.   Regrettably, with the new amendment to Michigan’s statute, the Association may have to wait years to see a dime. However, the Board will still want to direct its attorney to prepare and file the garnishment with the co-owner’s employer in order to establish priority since the employer will be required to begin paying the Association once any prior garnishments have been paid in full or withdrawn.

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It is important for the Board of Directors for the Association to continually review the Association’s receivables and aggressively pursue the collection of any delinquent accounts. With the recent changes to Michigan’s statute, any delays may impact how quickly the Association will obtain garnishment payments.

William Kolobaric is an attorney in our Livonia office where he concentrates his practice on community association law, construction law, real estate law, creditor’s rights in bankruptcy, and probate and estate planning. He may be reached at (734) 261-2400 or

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Pokémon Go: What does your Condo or HOA need to know?

pokemongo-1200-x-682Pokémon Go is a free mobile video game that is taking the world by storm. Pokémon Go was released on July 6, 2016 in the United States and has already has more than ten million downloads. Pokémon Go is different than many mobile games as it allows players to capture, battle and train virtual creatures called “Pokémon” who appear on mobile device screens as though they existed in the real world. Pokémon Go makes use of the GPS and camera in a mobile device and requires players to travel to various locations, which may include homes or common areas in condominium or a subdivision. Proponents of Pokémon Go claim that it has health benefits as it allows children and adults that play Pokémon Go to exercise and get fresh air while they are engaged in fun family activity. However, while Pokémon Go may be a healthier version of a video game, it does create new issues for condominium associations and homeowner associations. Thus far, Pokémon Go players have crashed a car into a tree and walked off a cliff as a result of not paying attention to their real world surroundings. In another case, a private property owner shot a gun at Pokémon Go players mistaking the Pokémon Go players as criminals. Given the potential mishaps that have thus far resulted from Pokémon Go, condominium associations and HOA’s should be prepared to deal with the new issues presented by Pokémon Go players that may be wandering around their projects.

Can community associations stop third parties from entering onto private property to play Pokémon Go?

In the context of a condominium association or homeowners associations, many Pokémon Go players that have no relation to a community association may attempt to enter onto common areas such as roads, sidewalks, greenspaces, pools or clubhouses. In some cases, Pokémon Go players may also attempt to enter onto yards, driveways, take pictures of condominium units or individual homes. In instances where the Pokémon Go player(s) has no relation to the community association, the community association has several options.

First, as a practical matter, a community association board can simply file a request to have a certain location removed from the Pokémon Go game at the Pokémon Go support page and report an issue with a gym or Pokémon stop. While there is no guarantee that the location will be removed, this is an easy and practical initial step for a community association board to take to try and resolve a Pokémon Go invasion.

Second, if removing the location of a community association from Pokémon Go does not resolve the issue, the common areas of a condominium or subdivision are often private property that is administered by the community association. Third parties that do not have a legal basis for being on private property may qualify as trespassers. In serious cases where third parties ignore warnings to leave, or continue to come back, a community association board could file a civil action to obtain an injunction preventing trespasses or call the police to see if they will remove the trespassers.

Given the issues thus far caused by Pokémon Go players that forget their real world surroundings, it is recommended that a community association board take some action to prevent third-party trespassers in the common areas. Third-party trespassers not only pose a nuisance to the owners, but also create safety hazards and additional liability issues for community associations. Accordingly, a condominium association or HOA should not sit idle when it learns of continued trespasses by Pokémon Go players that have no relation to the community and ignore a friendly request to leave the premises.

Can you stop co-owners, invitees, guests or renters from playing Pokémon Go?

While community associations certainly have an interest in preventing trespassers from playing Pokémon Go in common areas, they must also be mindful of regulating co-owners, invites, guests or renters. As an initial matter, a condominium association or HOA should review its existing bylaws to determine whether it currently has restrictions in place regarding use of the common elements or whether it has the ability to make rules and regulations regarding the use of the common elements. In many instances, if Pokémon Go players get out of hand, condominium bylaws contain provisions that preclude a co-owner, renter or a guest from causing a nuisance, obstructing the common elements or engaging in activity that increases the rate of insurance.

While the above types of bylaw provisions provide broad power to a community association, a condominium association or homeowners association would be best served to create a specific set of rules and regulations that relates to Pokémon Go if it is becoming an issue for the community association. By way of example, a condominium association or homeowners association may wish to restrict certain locations where Pokémon Go is played, the time of day that is played, etc. This is not only important from a nuisance perspective, but also from a safety perspective as a co-owner or guest could easily walk off the ledge of a retaining wall or fall into a retaining pond if they are not paying attention. However, when creating rules related to Pokémon Go a community association should be mindful of the federal Fair Housing Act, 42 U.S.C. § 3601, et seq. The Fair Housing Act prohibits discrimination against “any person in the terms, conditions, or privileges of sale or rental of a dwelling, or in the provisions of services or facilities . . . because of race, color, religion, sex, familial status, or national origin.” Accordingly, any rules related to Pokémon Go would need to apply to allow co-owners and should not be targeted at children.


While Pokémon Go may be the most popular video game in recent history, and it certainly has benefits, condominium associations and homeowners associations need to be prepared to deal with issues relating to nuisance, trespass and safety concerns that come with playing Pokémon Go. Community associations should be vigilant when it comes to protecting trespassers on private property. Community associations should also make decisions as to whether co-owners, renters or guests will be allowed to play Pokémon Go in common areas. If a community association does allow for Pokémon Go to be played, it should evaluate whether it needs to amend its bylaws or adopt reasonable rules and regulations relating to Pokémon Go.

Kevin Hirzel is a partner in our Livonia and Clinton Township offices where he concentrates his practice on commercial litigation, community association law, condominium law, construction law, real estate law, and probate and estate planning. He may be reached at (734) 261-2400 or

Architectural Control: Sculptures, Statues, Lawn Ornaments, Birdbaths and Other Items on the Common Elements or Lots

Joe Wloszek_8x10@300Numerous condominiums in Michigan restrict (or outright ban) sculptures, statues, lawn ornaments, birdbaths or other items pursuant to the condominium documents. Many of these provisions were drafted by the developer when creating the condominium in order to provide uniformity during the sales process. Likewise, many declarants subjected a platted subdivision to deed restrictions that also restrict or ban the use of the above described items. Whether in a condominium or homeowners association (“HOA”), many people purchase without knowing the restrictions. The purpose of this article is not to say what restrictions or bans are appropriate in every circumstance. Such decisions are best left to each individual association or democratically handled through the amendment process. However, this article discusses common restrictions and common traps that Michigan community associations handle.

Michigan Condominiums: Michigan Condominium Act

The Michigan Condominium Act, MCL 559.101, et seq., does not prohibit sculptures, statues, lawn ornaments, birdbaths and other items from the condominium premises. While some condominium documents do not contain explicit restrictions related to sculptures, statues, lawn ornaments, birdbaths and other items, more often than not such restrictions are explicitly contained in the governing documents of the condominium. Such restrictions are permitted under MCL 559.153, which states, in part, “The administration of a condominium project shall be governed by bylaws recorded as part of the master deed, or as provided in the master deed.” Therefore, in the condominium context, the first place to check for restrictions of items on the condominium premises is in the condominium bylaws and in the vast majority of cases, the restrictions are contained within Article VI of the condominium bylaws.

A second place to look for restrictions is in the rules and regulations duly adopted by the association. Under MCL 559.165, “Each unit co-owner, tenant, or nonco-owner occupant shall comply with the master deed, bylaws, and rules and regulations of the condominium project and [the Condominium Act].” Failure to comply with the condominium documents may expose the offending co-owner to a lawsuit by the Association. MCL 559.206 states:

A default by a co-owner shall entitle the association of co-owners to the following relief:

(a) Failure to comply with any of the terms or provisions of the condominium documents, shall be grounds for relief, which may include without limitations, an action to recover sums due for damages, injunctive relief, foreclosure of lien if default in payment of assessment, or any combination thereof.

(b) In a proceeding arising because of an alleged default by a co-owner, the association of co-owners or the co-owner, if successful, shall recover the costs of the proceeding and reasonable attorney fees, as determined by the court, to the extent the condominium documents expressly so provide.

(c) Such other reasonable remedies the condominium documents may provide including but without limitation the levying of fines against co-owners after notice and hearing thereon and the imposition of late charges for nonpayment of assessments as provided in the condominium bylaws or rules and regulations of the condominium.

Therefore, it is important to check the specific language of your condominium documents to determine the nature and extent of restrictions, if any.

Michigan Homeowners Associations: Michigan Nonprofit Corporation Act

Michigan does not have a “Homeowners Association Act.” Accordingly, restrictions relating to sculptures, statues, lawn ornaments, birdbaths and other items are either governed by recorded deed restrictions or association bylaws adopted pursuant to the Michigan Nonprofit Corporation Act, MCL 450.2101, et seq. Absent a restriction in the recorded deed restrictions or in the association bylaws, which are typically not recorded, a homeowners association typically cannot prohibit sculptures, statues, lawn ornaments, birdbaths and other items from the owners’ lots.

Similar to condominiums, there are some homeowners associations whose documents do not contain explicit restrictions related to sculptures, statues, lawn ornaments, birdbaths, sheds and other items; however, more often than not, association documents do restrict such items. In the homeowners association context, the first place to check for restrictions is within the deed restrictions, which is often called the declaration of restrictions. In the vast majority of cases, such restrictions are contained in either Architectural Control or Building and Use Restrictions.

A deed restriction represents a contract between the buyer and the seller of property.  Uday v. City of Dearborn, 356 Mich. 542, 546, 96 N.W.2d 775 (1959).  “Undergirding this right to restrict uses of property is, of course, the central vehicle for that restriction:  the freedom of contract, which is deeply entrenched in the common law of Michigan.”  Terrien v. Zwit, 467 Mich. 56, 71, 648 N.W.2d 602 (2002), citing McMillan v. Mich. S. & N. I. R. Co., 16 Mich. 79 (1867). The United States Supreme Court has listed the “right to make and enforce contracts” among “those fundamental rights which are the essence of civil freedom.”  United States v. Stanley, 109 U.S. 3, 22 (1883).  We “respect[ ] the freedom of individuals freely to arrange their affairs via contract” by upholding the “fundamental tenet of our jurisprudence that unambiguous contracts are not open to judicial construction and must be enforced as written,” unless a contractual provision “would violate law or public policy.”  Rory v. Continental Ins. Co., 473 Mich. 457, 468, 470, 703 N.W.2d 23 (2005).  In Michigan,

A covenant is a contract created with the intention of enhancing the value of property, and, as such, it is a “valuable property right.” City of Livonia v. Dep’t of Social Services, 423 Mich. 466, 525, 378 N.W.2d 402 (1985). “The general rule [of contracts] is that competent persons shall have the utmost liberty of contracting and that their agreements voluntarily and fairly made shall be held valid and enforced in the courts.”

Terrien v Zwit, 467 Mich 56, 71; 648 NW2d 602, 611 (2002). Therefore, under Michigan law, restrictions or bans of specific items on the lots subject to deed restrictions is typically permitted.

There are Restrictions: Now What?

Once the appropriate provisions in the condominium documents or the deed restrictions are located, the question becomes whether the items are restricted/regulated or altogether banned. Our office routinely encounters arguments by co-owners or owners that specific items are not prohibited by the governing documents. For example, if birdbaths are prohibited, someone may claim that an item is not a birdbath, but the item is a “fountain”. As another example, if statues are prohibited, someone may claim that an item is not a statue, but the item is a “lawn ornament”. These are but a few examples of the types of nuances utilized in an attempt to circumvent restrictions. Whether such arguments are successful depends on a case-by-case basis. It is advisable for associations to define (to the extent possible) what is and what is not allowed.

One way to handle such circumstances is to address each situation on a case-by-case basis through an architectural control committee. The committee is given the ability to review and approve/disapprove any items on the condominium premises or lots. If an owner/co-owner is not happy with the decision of the committee, the owner/co-owner usually has multiple avenues of recourse, depending on the language of the governing documents, such as 1) convincing the committee it is wrong through logic or persuasion, 2) modifying the original request 3) attempting to alter the composition of the committee via political means or 4) amending the governing documents to add, remove or modify certain restrictions.


As with any restrictions when living in a community association, whether to permit, restrict or ban sculptures, statues, lawn ornaments, birdbaths and related items is up to the discretion of each particular association. However, it is important for the board to enforce these restrictions when enacted according to their plain language to avoid a claim for selective enforcement or waiver. Rather, the best approach is to consistently enforce restrictions as written and amend the restrictions if they do not satisfy the needs of the community.

Joe Wloszek is an attorney in our Livonia office where he focuses his practice on dispute avoidance, condominium law, commercial litigation, commercial real estate, large contractual disputes, and title litigation. He has extensive litigation and trial experience in state and federal courts involving commercial litigation issues and real estate matters. He can be reached at (734) 261-2400 or

What Community Associations Should Know About the Fair Housing Act and its Impact on Pool Rules and Regulations

William Kolobaric_8x10@300With the summer heat wave in full force, it is nice to enjoy a refreshing dip in the pool to cool down.  Also, pools are not only good for cooling down but also provide numerous other benefits, including family time without the distractions of today’s technology, fitness training, stress relief, therapy and helping to keep children active.  Additionally, community pools can add value to one’s property.

For many of these same reasons, many condominium and homeowner association projects are built with community pools.  In order to protect the interests of their members, guests and invitees, many of these communities enact pool rules and regulations for safety and health reasons in order to prevent accidents and injuries.  One can often find rules and regulations that restrict the age of the individual using the pool, the time when the pool can be used, the clothing to wear in and around the pool, the items that can be brought to the pool and/or used in the pool, and the activities that can be conducted in or around the pool.

Boards of Directors are now more frequently facing discrimination accusations about the appropriateness of these rules and regulations by their membership under the Fair Housing Act (“FHA”)[1].  This article will examine how swimming pool rules and regulations are impacted by the FHA, describe litigation that has taken place under the FHA, review the FHA senior living exception and make recommendations regarding pool rules and regulations.

The Fair Housing Act
The FHA, which is codified at 42 U.S.C. §§ 3601 – 3619, was originally adopted in 1968 and prohibits discrimination based on race, color, religion, sex, or national origin.  The FHA was amended in 1988 to add protected classes of disability and familial status.  The U.S. Department of Housing and Urban Development (“HUD”) administers and enforces violations of the FHA.

Many of the provisions of the FHA do not typically apply to community associations, but discrimination allegations are most often made under 42 U.S.C. § 3604(f) and, in particular, § 3604 (f)(2).  These provisions preclude discrimination on the basis of “familial status”, which means discrimination against families with children. Familial status protection also applies to pregnant women and anyone securing legal custody of a child under 18.  Thus, HUD will claim an association is violating the FHA if an association treats families with children differently than other residents in the community, either through direct discrimination or discriminatory enforcement of an association’s rules or restrictions.

Litigation under the FHA
Since the 1988 amendments, there have been a number of lawsuits that have challenged swimming pool rules on the basis that they discriminate on the basis of familial status.  These cases have held that restrictions on children’s use of a swimming pool, where those same restrictions do not apply to other adult residents, are prima facie cases of discrimination under the Act.

As set forth above, most association rules and regulations are drafted to address concerns about safety and health, which have typically resulted in boards adopting rules that limit children’s use of the pool.  Although keeping the pool safe and sanitary presents a compelling business necessity for associations, the FHA  requires that boards come up with more inventive ways to address their safety and sanitation concerns than simply forbidding minors under a certain age or non-toilet trained children from using the pool.

The courts have found that the only way associations may avoid liability for rules that discriminate against children is to demonstrate: (1) that the pool rule is rooted in a “compelling business necessity,” and (2) that the rule constitutes the “least restrictive means” to achieve the desired effect.

For example, in Iniestra v. Cliff Warren Investments, Inc., C.D.Cal.2012, 886 F.Supp.2d 1161 (California), a California apartment complex rule stated 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 apartment complex was required to establish that the rule is the “least restrictive means to meet a compelling business necessity”. The Court found that the apartment complex 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 the 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 and violated the Fair Housing Act. (Also see U.S. v. Plaza Mobile Estates, cited below.)

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 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. Although sympathetic, the court ruled against the association.

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 older adults who cannot swim well.

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.

Exceptions for Senior Communities
Section 3604 of the FHA provides an exception for Fifty-five and over communities that qualify under the Housing for Older Persons Act of 1995 (42 USC § 3607(b)(2)(C)) (“HOPA”).   § 3607, which in relevant part provides as follows:

  • 3607. Religious organization or private club exemption(b) (1) … Nor does any provision in this title regarding familial status apply with respect to housing for older persons.(2) As used in this section, “housing for older persons” means housing–(C) intended and operated for occupancy by persons 55 years of age or older, and–(i) at least 80 percent of the occupied units are occupied by at least one person who is 55 years of age or older;Congress intended to balance the interests of the FHA to protect families with children while at the same time “fully protect[ing] the rights of senior citizens who live in retirement communities, and allow[ing] those communities to exclude families with children if they so choose.”  134 Cong. Rec. H4603 at *H4607 (daily ed. June 22, 1988).  Thus, on its face, the HOPA provisions would appear to allow age qualified communities to limit and/or prohibit the use of their amenities by children. Moreover, according to the Department of Housing and Urban Development (HUD):If a housing community facility qualifies under HOPA as housing for older persons, the community facility is exempt from the Act’s prohibition against discrimination on the basis of familial status. The housing community facility may restrict families with children from benefits of the community, or otherwise treat family households differently than senior households… (HUD Q & A re HOPA)However, since members have the right to have guests, including children, it would still be prudent that any rules and regulations meet standards of reasonableness and be drafted to address conduct rather than age or status to avoid potential claims which may cause unnecessary expenses to defend the rules and regulations from claims of discrimination.Consequences for FHA Violations
    Penalties for violations of the Fair Housing Act can vary depending on whether the case is processed via court, HUD or elsewhere and can result in fines up to $16,000 for the first offense and up to $65,000 for repeated offenses.  If the case involves the Justice Department, the penalties can go up to $100,000. Moreover, punitive damages can be awarded by the federal court, and the violator could be held responsible for compensation for actual damages, including humiliation, mental distress, and loss of housing opportunity.  In addition, the Association can be responsible for the attorney fees and costs incurred by the Plaintiff.  Additionally, HUD keeps a record of all charges that are filed through them and makes that information publicly available.Recommendations for Pool Rules & Regulations
    When considering implementing new or amending exiting pool rules and regulations, Boards should consider the following guidelines:
  • Boards should refrain from using subjective standards and instead use objective standards, issued by manufacturers of the diving board, slide, etc. So rather than stating “Children under the age of eighteen (18) years of age cannot use the diving board and slide”, the board can implement a rule that states that “the manufacturer of the diving board and slide recommend that only people over the age of twelve (12) years of age be allowed to use the diving board and/or slide”.
  • Boards should refrain from having rules and regulations that are an outright ban on children’s use of pool; rather boards should implement rules and regulations that require supervision of children under a certain age. Many such rules have set the age as fourteen (14) years of age due to the fact that the Red Cross requires students to be at least fifteen (15) years old by the last day of class to be certified as life guards. However, please note that although there have been courts that have allowed such supervision rules based on the age of the child, one court[2] has held that a pool rule requiring “children under 14 to be supervised by a parent or legal guardian while using the Pool and Spa…” familial discrimination under the FHA.
  • Boards should refrain from having rules and regulations that indicate a “parent” must be present. The board should rather implement rules and regulations that indicate a supervising adult should be present.
  • Boards should refrain from having rules and regulations that target a person’s particular attire that could be a basis for discrimination claims based on gender and/or religion. Thus, rules and regulations should simply state that the 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.
  • Boards 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. Boards can achieve similar results by having lap swimming for everyone during certain times of the day and/or areas of the pool.
  • Boards 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 rule or regulation can be rewritten to state that “children who are not toiled trained are required to use waterproof pants or diapers in the pool.”
  • Boards should refrain from having rules and regulations that ban all animals from the pool area. Boards should use language that allows a member of the association to bring their animal to the pool area if the animal is a service or emotional support animal.

Finally, as with all of the association’s rules and regulations, pool rules and regulations 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.

Care must be taken when drafting pool rules and regulations to avoid discrimination claims under the FHA and the consequences of violations can be harsh.  Boards should write their rules and regulations to address conduct rather than the age or status of the individual.  Moreover, the rules should be written such that they are the least restrictive means to the association’s compelling business reason.  Since use of the pool and conduct in and around the pool are very fact specific, in order to avoid violating the FHA, associations should consider contacting competent legal counsel to review their existing pool rules and regulations and any proposed revisions.  If you have any questions regarding your pool rules and regulations, please contact our office.

William Z. Kolobaric is an attorney in our Livonia office where he focuses his practice on community association law, construction law, real estate law, creditor’s rights in bankruptcy and probate and estate planning. He has extensive experience in state and federal courts involving a wide scope of real estate, commercial litigation and creditor’s rights matters. He can be reached at (734) 261-2400 or

Please view The Michigan Community Association Law Blog at for additional resources on Michigan Community Association Law.

[1] Boards should be aware that most associations will not be subject to the Americans With Disabilities Act (“ADA”), which Congress enacted in 1990 and which prohibits discrimination against the disabled in places of public accommodation, because their pools are only open to owners and residents and thus, do not qualify as places of public accommodation and are not subject to the ADA’s requirements.  However, there is an exception to this rule if a community association opens up its facilities to the public, such as when a community association’s pool is used for a swim meet with a team from another community.  If a community association does engage in activities that make it a place of public accommodation, then it is subject to the requirements of the ADA for that portion of the property and may be required to install accessibility features.

[2] See Pack v. Fort Washington II, 689 F.Supp.2d 1237 (E.D.Cal. 2009)

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