By Christopher Posner, Esq. | Community Association Law
Creating and enforcing rules and regulations are often a source of consternation and headaches for a community association’s board of directors and management. Compliance can be difficult to achieve with adults, but when it comes to creating rules to address conduct and behavior which is commonly seen in children, things can get a bit dicey. Associations looking to create rules and restrictions focused on the behavior of children should be very careful in how they word those rules, as nearly every rule which directly addresses or mentions “children” or families with children will be viewed with scrutiny under provisions of the Fair Housing Act. This is because families and age are considered protected classes under the Act. (Note, however, that communities qualifying as Housing for Older Persons, may be exempt from portions of the Act.)
Under the Fair Housing Act, a rule may be considered discriminatory if the rule, on its face, impacts families with children differently and less favorably than families without children. An individual challenging an association rule as discriminatory must allege that the rule treats families with children differently and present some manner of evidence supporting this allegation. If the challenging individual meets his/her initial burden, the inquiry then shifts to the association to demonstrate a legitimate, non-discriminatory basis for the rule. Finally, if the association can provide sufficient evidence of such basis, the burden shifts back to the challenging individual to prove that the reasons provided by the association are a pretext meant to cover up discriminatory intent.
Generally speaking, any rule that explicitly references children or individuals under a particular age will be closely scrutinized. Such rules may include curfews for those under the age of 18 or requirements of supervision by adults when using the pool, accessing recreational facilities, or even going outside. Even rules requiring proof of swimming ability by those under the age of 18 will most likely be deemed to be discriminatory. Examples rules that have been deemed discriminatory include:
- Rules requiring children to be indoors after a certain time;
- Rules prohibiting children from using the pool without adult supervision;
- Rules requiring children to be accompanied by a parent or legal guardian at all times;
- Rules prohibiting children from using recreational facilities without adult supervision;
- Rules that limit the number of guests children can have; and
- Rules that have “adult only” time slots for recreational facilities
The safest option when creating rules is to omit any reference to age or children and focus on the behavior and/or activity that the board wishes to address. Rules should not be targeted towards any demographic and should apply to everyone. For example, instead of adopting a rule that children with diapers are not permitted in the pool, the board may adopt a rule requiring that all incontinent persons wear special shorts in order to use the pool. That being said, if an association has a legitimate basis for adopting a rule focusing on situations involving children, such as repeated instances of children being injured in a community gym or children repeatedly causing damage to a common element, an association may have a basis for creating a more focused rule targeting the specific situation involving children. Should this be the case, the association would have to formulate a rule that is the least restrictive means of dealing with those safety issues.
In the event your Association is seeking to adopt new rules and regulations, including those potentially dealing with or impacting families or children, we strongly recommend that you consult with an attorney before enacting those rules. The attorneys at Straley | Otto have extensive experience in representing Homeowners, Condominium, and Cooperative Associations and can utilize that experience to assist your Association with enacting and enforcing its rules and regulations.
Author: Christopher Posner, Esq.