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Does Your HOA Have a Kid-Related Rule Like This One? Rethink It.

Does Your HOA Have a Kid-Related Rule Like This One? Rethink It.

In May, the U.S. Department of Housing and Urban Development announced a settlement with a Denver-area apartment complex over its rules governing kids’ behavior in the complex. The settlement requires the owners to, among other things, build a $10,000 playground.

Though the enforcement action involved an apartment complex, not an HOA, it’s still a warning to boards nationwide: Careful when you implement rules affecting just kids in your HOA. Violating fair housing laws can be costly.

Offending Rules

The settlement involved the owner and management company of The Orchards at Cherry Creek Apartments in Centennial, Colo., over violations of the federal Fair Housing Act. To refresh your memory, the act bans discrimination in housing-related transactions on the basis of race, color, national origin, religion, sex, familial status, and disability. “Familial status” has been interpreted to apply to rules governing families with children.

Where did The Orchards trip up? As published in the apartment’s newsletter, it implemented this rule:

“All children must be supervised by an adult at all times while playing outside. No sports activities, skateboarding, roller-blading, or general extracurricular activities are to take place in our community. If we see anyone violating any of the above activities or see any unsupervised children they will be sent home immediately.”
“A requirement of constant parental supervision of all minors, and even teenagers, is oppressive, unnecessary, and unfairly burdensome on families with children,” says Bryan Greene, HUD’s acting assistant secretary for fair housing and equal opportunity in the press release announcing the settlement. “The Fair Housing Act protects the rights of families with children to enjoy the same housing amenities that others do.”

The settlement not only requires the apartment owners to construct a $10,000 accessible playground on the property, but it also mandates fair housing training for the apartment’s employees.

Singling Out Children Usually Means Trouble

It’s easy to run into problems when you attempt to regulate safety but do it in a way that overly restricts children’s activities. “I’ve had this problem before, and it is a problem,” says Robert Galvin, a partner at Davis, Malm & D’Agostine PC in Boston who specializes in representing condos and co-ops. “The interesting thing is that these laws apply in areas most people wouldn’t think they apply in. In a lot of condos, there are rules that people under a certain age, say 16, can’t go into the pool at certain times. That’s the sort of thing that makes intuitive good sense to people, but it’s potentially illegal.

“I’ve also seen cases involving things like putting families with children on the first floor,” adds Galvin. “That seems sensible because kids can then easily run into the backyard. But you can’t do that as a policy. So you can have a rule or a bylaw that on its face may look innocuous but in actual practice has the effect of discouraging families with children, and that’s illegal.” That’s what led to the Colorado settlement. “In the Denver case, there were a number of policies that singled out and targeted children for regulation in the property,” explains Sara K. Pratt, deputy assistant secretary for enforcement and programs at HUD’s Office of Fair Housing and Equal Opportunity in Washington, D.C. “Many of those rules and policies might be designed to protect health and safety, but they’re targeted at children.”

Rules primarily affecting children raise negative attitudes toward families in general, says Pratt. “We’ve even seen a case where a property management company basically said children couldn’t play outdoors after 6 or 7 in the evening,” she says. “That’s very restrictive and could be considered to be highly negative toward families with children.

“If you’re addressing a concrete, identified problem,” advises Pratt, “make sure you identify that problem and address it for anyone, whether they’re children or adults who might be engaging in the practice. And make sure, if you have a group of policies, they don’t add up to sending a message that children aren’t welcome there, even if you address the problems to everybody.”

More Knowledge Helping

“I think most people recognize discrimination isn’t necessarily illegal,” explains Christopher J. Shields, a partner at Pavese Law Firm in Ft. Myers, Fla., who’s represented associations for decades. “It can be legal or illegal. If yours is a qualified-for-older-persons community and you’ve complied with what the federal and state statutes require, you can discriminate against children. The problem is communities that don’t fit those restrictions try to adopt rules that are overly restrictive on children. Even simply regulating the use of the pool or other recreational facilities can have a chilling effect on families with children and make them feel unwelcome. If your association doesn’t fall within the housing for older persons exemption, you have to be very careful.”

The good news is that these types of problems are arising less often. “I’m seeing these issues less,” says James R. McCormick Jr., a partner at Peters & Freedman LLP in Encinitas, Calif., who represents associations. “I think there’s more of an understanding of the potential for violation of these laws. There’s been more information circulating, and more people are realizing you can’t have these broad discriminatory rules that apply to children.”

McCormick’s experience is also HUD’s experience. In 2009, the number of fair housing cases filed on the basis of familial status was 1,846. That number has steadily dropped, landing at 1,139 in 2013.

“Nationally, the top category of cases we see is discrimination based on disability, and those often include issues with service or assistive animals or nearby or designated parking spaces,” says Pratt. “The second-highest category of cases nationally is racial discrimination, and the third is familial discrimination.”

Where are there still problems? “One issue associations still have problems with is with reference to pools,” says McCormick. “They don’t understand how you can discriminate with reference to them because there’s a fine line between discrimination and safety. I’ve seen rules saying all children must be accompanied by an adult. I’ve also seen rules governing diapers for children when they could also apply to anyone with incontinence.”

Your best bet when enacting rules that may affect families? “If you’re addressing rules on safety, make sure they’re targeted to the need, make sure they don’t just single out children, and make sure they’re justified by a problem, not just part of a list someone found on the Internet,” advises Pratt.