Condo Media - August 2018 - 46

Little Kids, Big PROBLEMS
"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:
n Prohibited children from playing
on park streets or common areas;
n Allowed them to swim only during a designated two-hour period
every day; and
n Required adult supervision for
children under the age of 14 riding
bikes and for children younger
than 18 using the clubhouse or
recreational facilities.

CONDOMEDIA August 2018

The homeowners' 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.

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.
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 antidiscrimination 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:
n Children as well as adults are allowed
to swim laps;
n An equal amount of space is available
for general swimming; and
n The configuration of the pool does not
result in more crowded or otherwise

Condo Media - August 2018

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