Put Away Your Bikes Kids and Get in the House!

I have a confession to make – I’m addicted to the news. It’s pretty common for me to have the remote control for the TV in hand as I rapidly surf from news program to news program. I was in the zone Saturday morning with a cup of coffee in one hand and my trusted clicker in the other when I couldn’t get away from news accounts of an association in Florida that is proposing a ban on kids playing outside. With a nuclear plant on the verge of a meltdown in Japan, a civil war raging in Libya and Charlie Sheen kicking off his “Torpedo of Truth Tour,” why on earth was there so much press coverage about this HOA?

The fact is, whenever an HOA is perceived to be acting in an abusive manner the press will cover the story long and hard. In this particular case, a 48 unit townhouse association is proposing a ban on minors playing outside without adult supervision. In addition,ParentDish reports the proposed rule would prohibit kids from “playing tag, skateboarding, riding Big Wheels or using toys considered loud or obnoxious.” 

 

The townhouses in the association are evidently surrounded by a parking lot with little room for the kids to play. The board of the association is contending the proposed rule is aimed at promoting the safety of the kids in the association. However, a board member has also been widely quoted as saying “They came in and rented in a community that does not have a playground and is not conducive to children. Then they expect the children to play in the driveways and parking lot. You wouldn’t see them playing in the parking lot at Walmart or Kmart, but they come here and turn the children loose.”

 

Regardless of whether you agree with the negative press coverage or the HOA, the association is in a precarious position relative to the Federal Fair Housing Act (“FHA”). The FHA prohibits discrimination based upon “familial status” which in part forbids rules that unreasonably single out children. In some cases, courts have found that safety concerns justify the imposition of reasonable rules that regulate kids. Other courts have ruled that the safety of children is within the purview of parents and not associations. 

 

In this case, the HOA may have an argument that it is reasonable to limit some activities of children in the parking lot. However, that position is not even a great bet. It’s much more likely that banning kids from playing tag, riding Big Wheels or using “loud or obnoxious” toys is a violation of the FHA.

 

If your association is considering the creation of rules regulating the use of common areas or amenities (including pools) by kids, it is important to first consult with legal counsel to protect the association from a potential discrimination claim under the FHA.