Harkening back to the rejection of the “separate but equal” discussion from Brown v. Board of Education, 347 US 483 (1954), Monday’s decision in Curto v. A Country Place Cd’m. Ass’n., Inc., Case No.: 18-1212 (3d Cir. April 22, 2019), applied the Federal Fair Housing Act to restrictions on the times women may use a condominium pool.

The Condominium is 55+ “age restricted” with a pool funded by members’ monthly maintenance fees. After pool renovations in 2011, the pool reopened with certain hours of use designated for only male or only female swimmers. The time restriction was to accommodate religious beliefs of “modesty” where members of one sex should not see the other sex in a state of undress. In 2016 the Association increased the number of sex segregated hours on a weekly basis to: 31.75 hours as “men’s swim”; 34.25 hours as “women’s swim”; and, 25 hours plus Saturday without restriction. Most weekdays after 4 pm and all weekdays after 6:45 pm were restricted only for men’s swim.

Challengers to the same sex swimming hours restriction included: a married couple, the wife suffering debilitating strokes and sought pool therapy with her husband; and, a woman who sought to swim with her family. The trial court granted summary judgment for the Association stating that the “gender segregated schedule applies to men and women equally.”

The Circuit Court of Appeals commenced with reciting the Fair Housing Act, Section 42 USC §3604(b), prohibiting certain housing discrimination, including discrimination on the basis of sex.

The pool time restriction discriminates by limiting use at different times based on sex. Significance was placed on restrictions on evening hours when women returning home from working during the day generally were not permitted to use the pool. The Court rejected a defense based on lack of Association malice when there was a showing a disparate impact. The Court focused on the “explicit terms of the discrimination.”

The Association apparently sought on appeal to justify the pool time restriction on religious grounds pursuant to the Religious Freedom Restoration Act (“RFRA”), 42 USC §2000(bb) et. seq., but also apparently did not raise that defense to the trial court. The Court noted that even if the RFRA was raised, the Association would not have standing to raise religious grounds as a defense because the Association does not have a religious purpose. Also, apparently the record did not have adequate evidence of religious beliefs.

The Appellate Court reversed and remanded for entry of judgment in favor of the Plaintiffs.

In our heterogeneous country, founded upon immigration literally for over centuries, from literally every “corner” of the globe, and with Emma Lazarus’ immortal words of The New Colossus etched into the tablet held by the Statue of Liberty, we will have more communities with residents that have differing religious observances. Thus, disagreements regarding common area uses based on religious observances are likely to increase.

Association counsel may need to inquire beyond the facts as presented, especially with the lurking issue of “disparate impact” undermining restrictions that may appear justified on their face, but which have an impact that crosses the line into unlawful discrimination.

By the way, this is not the first time appellate courts addressed use of condominium common elements for religious purposes. Neuman v. Grandview at Emerald Hills, Inc., 861 So. 2d 494 (Fla. 4^th DCA, 2003), affirmed a condominium association’s prohibition of religious services because of the potential of conflicts between religious groups.

Michael J. Gelfand

Past Chair

Real Property, Probate and Trust Law Section

of The Florida Bar

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Note: This article is not legal advice. Statements and comments made are not those of The Florida Bar or the RPPTL Section

© 2019 Michael J. Gelfand

Michael J. Gelfand

Florida Bar Board Certified:

Real Estate Attorney

Condominium & Planned Development Law

Florida Supreme Court Certified Mediator:

Civil Circuit Court & Civil County Court

Fellow, American College of Real Estate Attorneys

The only thing necessary for the triumph of evil is for good men to do nothing.

- Edmund Burke