Published on: February 27, 2018
By Pamela M. Jonah
Imagine this: Susan and Bill, a retired couple in their late 60s, are sitting around the community association’s pool on a warm summer day, chatting with other residents. They have no children of their own and are becoming increasingly agitated by the high-pitched squeals of children who are swimming and splashing in the water. “I think children should be barred from the pool on weekends, so adults can enjoy it,” Bill huffs. “Great idea,” one of his neighbors agrees.
In fact, it’s not a good idea at all. It’s a violation of federal and state Fair Housing laws, which prohibit discrimination against families with children. Children must be able to enjoy the community fully, in the same way as other residents. Any rules that restrict their use of amenities or their access to common areas violate those laws.
Complaints about children are common in mixed-age communities and boards sometimes respond to those complaints by adopting rules that prohibit children from engaging in activities or behaving in ways that residents find disturbing or annoying.
The most common rules set age limits on access to facilities, require adult supervision in some areas or for some activities, or bar access completely to facilities or common areas. Sometimes the rules are transparent, acknowledging the desire to ensure the comfort of adults. But most cite as their primary goal protecting children from harm.
Proficiency – Not Age
The courts have consistently rejected those initiatives. For example, in a 2003 California case (U.S. v. Plaza Mobile Estates) residents of a mobile home community challenged rules that:
- Prohibited children from playing on park streets or common areas;
- Allowed them to swim only during a designated two-hour period every day; and
- Required adult supervision for children under the age of 14 riding bikes and for children younger than 18 using the clubhouse or recreational facilities.
The homeowner association argued that the rules were intended to protect the safety of children; the court found them discriminatory. “There is nothing magical about the age of 18 or 14,” the court noted. While concerns about the safety of children riding bikes and swimming are legitimate, the court agreed, they would be “better-served with a proficiency requirement” applied to everyone.
Another California court made the same point in a 2012 case (Iniestra v. Cliff Warren Invs., Inc.), rejecting similar rules requiring adult supervision of young swimmers. “It is entirely possible that younger children might be more adept swimmers than their older counterparts,” the court noted.
In the earlier Plaza Mobile Estates case, the homeowners’ association also asserted an obligation to ensure the peace and quiet adult residents wanted, an argument the court rejected flatly, citing its discriminatory effects.
“If this were a case of a homeowners’ association allowing everyone to use the main pool at all available hours in the summer, except for women, or persons born in Iraq or China or members of the Episcopal Church, such restrictions would be equally unlawful as the restrictions on access by children,” the court noted. Any concerns about the behavior of children should be addressed by talking to their parents, the court said; not by adopting rules discriminating against them.
Little Wiggle Room
As these decisions indicate, the anti-discrimination provisions of the Fair Housing Act are broad and rigid; they don’t provide much wiggle room. Some associations have tried to thread the discrimination needle by designating certain lanes in the pool for lap swimming, and courts may find this arrangement acceptable, provided that:
- Children as well as adults are allowed to swim laps;
- An equal amount of space is available for general swimming; and
- The configuration of the pool does not result in more crowded or otherwise less desirable space for children who can’t swim laps.
The rules associations enact must be neutral in their effect as well as in their intent. An example is requiring swim diapers for toddlers under a specified age. This seems a perfectly neutral and reasonable means of dealing with children who are not yet toilet-trained─ until you consider the possibility that some adults may be incontinent. A swim diaper requirement applied to children but not to them would be discriminatory. So, an association rule would have to say: “Swimmers who are not toilet-trained or are incontinent must wear swim diapers.” Before you adopt such a rule, however, you might want to consider its enforcement: How are you going to identify those who require swim diapers and verify that they are wearing them?
Separate but Equal Isn’t
Swimming pools seem to be a focal point for complaints about children. To avoid those headaches, some associations have contemplated having two pools, equal in size – one for children and one for adults. This won’t pass the discrimination test, however; ‘separate but equal’ is no more acceptable for swimming pools than it was for schools in landmark civil rights decisions establishing the rights of minorities.
Designating certain buildings, floors, or areas of a community for families with children won’t work for the same reason. Telling families that because they have children they can’t live in some areas or buildings attacks the purpose of the Fair Housing Act ─ to ensure equal access to housing.
Courts that have found child-focused regulations to be discriminatory have indicated that they might rule otherwise if there were a “compelling necessity” for the rules, and if the rules represented the least restrictive means possible of achieving that goal. But I’m hard-pressed to identify any age-related restrictions boards might enact that would meet the “compelling necessity” test.
The age limits manufacturers recommend for some exercise equipment might provide a legal shield for an association rule, but I’m not sure how sturdy that shield would be, and I’m not comfortable suggesting that boards rely on it. Some parents would almost certainly argue that their 12-year old, who trains regularly on a weight machine, should not be barred from using the same equipment in the association’s exercise room, and some courts would probably agree. At a minimum, the association is going to incur the expense of fighting this legal battle, and the ill will of the families who initiate the action.
The association’s interests would be better-served, I think, by focusing on the potential liability. Instead of barring children from the exercise room or requiring adult supervision for them, require everyone to sign a waiver acknowledging and accepting the risk of injury, including parents on behalf of their children. Ensuring the safety of young children is a legitimate concern and an admirable goal. But boards can’t regulate everything; sometimes you just have to stand back and let people decide for themselves what risks they are willing to incur.
Avoiding the Tripwires
Fair housing requirements, as they apply to children, clearly create something of a legal landmine for condo associations. These suggestions can help boards avoid stepping on the tripwires:
- Don’t use the word children in any rules.
- Make sure your rules serve a legitimate, necessary and non-discriminatory purpose. Link them to objective criteria – demonstrated proficiency in the swimming pool, for example – not to age.
- Make your rules neutral in their intent and even-handed in their impact. Target behaviors, not people. If you’re concerned about noise, prohibit noise in the common areas; don’t prohibit children from gathering there. If you don’t like children playing ball in the courtyard or riding bikes in the street, prohibit ball-playing and bike-riding by anyone in those areas.
- If adults complain that children make too much noise or take up too much space in the swimming pool, remind them that they can’t expect the same environment in a common interest community that they would find in a detached, single-family home. If you share walls and amenities with others, you are going to see and hear them. It is reasonable to expect all residents, including children, to be considerate of others and to obey association rules. It is neither reasonable, nor legal, to require children to be seen (only during designated times) and not heard.
- Just because you can regulate something doesn’t mean you should. Focus on the concerns that are most important to owners and necessary to protect them from nuisances or threats to their health or safety. That advice applies to all rules, not just to those affecting children. And it isn’t just about compliance with the Fair Housing Act; Its about good governance and common sense.