 Children are exuberant. They are, fun-loving beings who seem to race through life at high speed. If, day after day, they hit the community pool in the middle of the afternoon, piercing the well-earned peace and quiet of elderly community residents, can the Homeowners Association (HOA) demand restrictions on children’s their pool time?
The short answer is, no.
To do so would violate federal and state Fair Housing laws, which distinctly prohibit discrimination against families with children. In mixed-age communities, the law states, children must be able to fully enjoy community facilities in the same way as other residents do. Any rules restricting their use of amenities or common areas are simply not enforceable.
A carve-out in the federal Fair Housing Act, which was passed in 1968, allows for 55-and- older retirement communities to keep younger people out as residents. However, even designated “senior” communities must allow visiting children to have equal access to amenities and common areas.
Almost every pool area has a list of rules prominently posted - “no diving,” “no running,” “no horseplay,” “no glass containers,” and/or “no children under the age of 18 permitted without adult supervision.” Such rules exist to ensure the safety of swimming facilities, and to help shield associations from liability in the event of an injury or a lawsuit. In many cases, they also exist to protect children from harm while ensuring the comfort of older community residents.
But even rules like these have been successfully challenged in the courts. In fact, since the adoption of the Fair Housing Act, many courts have held that any rules about requireding adult supervision, adult- only swim times and no-children areas, are clearly in violation.
HOA covenants regarding pool use—the most common focal point for complaints about young people—must be applicable to all residents. A rule requiring swim diapers for children not yet toilet-trained, for example, must also apply to older swimmers who are incontinent, despite the fact that identifying such swimmers and verifying the wearing of diapers would be a near-impossible feat. Best, then, to avoid such toothless rules in the first place.
If there is a lesson in all of this, it’s that HOA boards in mixed-age communities should avoid enacting rules directed at, or including the word, ‘‘children.’ Instead, they could tactfully remind residents who complain about noisy children in the community’s common areas that they might find an environment more to their liking in a single-family, detached home, or in a 55-and over community, if they qualify.
As your title partner, we can help you obtain and review the HOA Covenants, Conditions & Restrictions when your customer has a concern.
Barbara Pronin is an award-winning writer based in Orange County, Calif. A former news editor with more than 30 years of experience in journalism and corporate communications, she has specialized in real estate topics for over a decade.
This material is not intended to be relied upon as a statement of the law, and is not to be construed as legal, tax or investment advice. You are encouraged to consult your legal, tax or investment professional for specific advice. The material is meant for general illustration and/or informational purposes only. Although the information has been gathered from sources believed to be reliable, no representation is made as to its accuracy.
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