School’s out for the summer! For many condominium and homeowners associations with families, the long summer days mean more families and children utilizing recreational facilities and common areas, such as clubhouses and swimming pools. Concerned about the safety of children who use these areas, condominium and homeowners associations may create and enforce rules and regulations designed to protect the children and limit the association’s liability; however, some of these rules and regulations may end up discriminating against children and families with children, subjecting the associations to potential liability under the Fair Housing Act, 42 USC § 3601 et seq.. So how can condominium and homeowners associations draft rules and regulations that treat children and non-children households uniformly? We provide two guiding principles backed by real-life cases for condominium and homeowners associations to keep in mind.
What Is Familial Discrimination Under the Fair Housing Act?
Under the Fair Housing Act, “familial status” is defined as the following:
[. . .] One or more individuals (who have not attained the age of 18 years) being domiciled with—
(1) a parent or another person having legal custody of such individual or individual(s); or
(2) the designee of such parent or other person having custody, with written permission of such parent or other person.
The protections afforded against discrimination on the basis of familial status shall apply to any person who is pregnant or is in the process of securing legal custody of any individual who has not attained the age of 18 years. 42 USC § 3602(k).
42 USC § 3604 of the Fair Housing Actthen prohibits, in pertinent part, the following:
[. . .] It shall be unlawful— [. . .]
(b) To discriminate against any person in the terms, conditions, or privileges of sale or rental of a dwelling, or in the provision of services or facilities in connection therewith, because of [. . .] familial status [. . .]
(c) To make, print, or publish, or cause to be made, printed, or published any notice, statement, or advertisement, with respect to the sale or rental of a dwelling that indicates any preference, limitation, or discrimination based on [. . .] familial status [. . .] or an intention to make any such preference, limitation, or discrimination.
The Department of Housing and Urban Development (“HUD”) also has adopted federal regulations prohibiting the following:
(a) It shall be unlawful, because of [. . .] familial status [. . .] to impose different terms, conditions or privileges relating to the sale or rental of a dwelling or to deny or limit services or facilities in connection with the sale or rental of a dwelling.
(b) Prohibited actions under this section include, but are not limited to: [. . .]
(4) Limiting the use of privileges, services or facilities associated with a dwelling because of [. . .] familial status [. . .] of an owner, tenant or a person associated with him or her.
Taken altogether, familial discrimination under the Fair Housing Act can include any terms or conditions that deny or limit services or facilities to individuals who are under the age of 18.
When Do HOA Rules Discriminate Based on Familial Status Under the Fair Housing Act?
When a condominium or homeowners association rule or regulation is challenged as discriminating on the basis of familial status in violation of the Fair Housing Act, it is normally challenged as disparate treatment of children and families with children and reviewed by the courts under the following analysis:
A plaintiff may establish a prima facie violation of section 3604(b) by establishing the existence of ‘facially discriminatory rules which treat children, and thus, families with children, differently and less favorably than adults-only households [. . .]
The three-part test set forth in McDonnell Douglas Corp v Green, 41 US 792; 93 S Ct 1817, 36 L Ed 2d 688 (1973), is used to evaluate claims of discrimination brought under Section 3604(b) of the FHA. The plaintiff must first prove a prima facie of discrimination by a preponderance of the evidence. If the plaintiff sufficiently establishes a prima facie case, the burden shifts to the defendant to articulate some legitimate non-discriminatory reason for its action.
‘Once a prima facie case is established, defendants must articulate a legitimate, non-discriminatory justification for the challenged policy.’ ‘To accomplish this, the defendant is only required to set forth a legally sufficient explanation.’
If the defendant satisfies this burden, the plaintiff must prove by a preponderance of the evidence that the legitimate reasons asserted by the defendant are pretextual. Hill v River Run Homeowners Ass’n, Inc, 438 F Supp 3d 1155, 1173-74 (D Idaho, 2020) (citations omitted).
In sum, the co-owner or homeowner challenging the rule or regulation is first required to establish, by a preponderance of the evidence, that the rule or regulation, on its face, treats children or families with children differently. If the co-owner or homeowner satisfies this burden, then the condominium or homeowners association must be able to provide a legally sufficient, legitimate, and non-discriminatory justification for the rule or regulation. If the condominium or homeowners association is able to satisfy this burden, then the co-owner or homeowner must prove, by a preponderance of the evidence, that the reasons articulated by the condominium or homeowners association are pretextual, or designed to cover up the true intent of discriminating against children and families with children.
What HOA Rules Have Been Struck Down Because They Discriminated Based on Familial Status?
Below is a highlight of cases from around the country in which the federal courts have held that certain HOA rules treated children and families with children differently without a legally sufficient, legitimate, or non-discriminatory justification:
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- “All persons under the age of 18 must be in their home or back patio after sunset” and “There will be no loitering—congregating on the streets of [the development] [—] at any time. After dark all children should be in their home or on their patio.” Fair Hous Ctr of the Greater Palm Beaches, Inc v Sonoma Bay Community Homeowners Ass’n, Inc, 682 Fed App’x 768 (CA 11, 2017). The homeowners association’s justifications for these rules were safety concerns and crime prevention; however, the federal district court rejected these justifications as unsatisfactory, noting that the homeowners association did not provide evidence that the children had a propensity to commit criminal acts or that the children’s parents could not supervise their outdoor activities at night.
- “Children on the premises are to be supervised by a responsible adult at all times,” “Children under the age of 18 are not allowed in the pool or pool area at any time unless accompanied by their parents or legal guardian,” and “When the building lights come on all children are to be in their apartments.” Iniestra v Cliff Warren Investments, 886 F Supp 2d 1161 (CD Cal, 2012). The apartment complex’s justifications for these rules were its concerns that children would play around the mechanical gate that permitted vehicles to enter and exit the complex and that there was no lifeguard on duty at the swimming pool. The federal district court rejected these justifications, explaining that the adult supervision rule throughout the entire premises was broader than the purpose of keeping children safe near the mechanical gate and that the adult supervision rule for the swimming pool was not an efficient method of promoting pool safety, particularly because it was possible for younger children to be better swimmers than older adults.
- “All children 10 and under must be supervised by an Adult while outside,” “Persons under the age of 18 must abide by the set curfew of 10:00 P.M.,” “Children under the age of 14 years old must be accompanied by their parent or legal guardian at all times,” “No persons under the age of 18 will be allowed to use the facility under any circumstances without ADULT RESIDENT supervision,” and “No one under the age of 12 is allowed to use the Pool Table under any circumstances at any time.” Pack v Fort Washington II, 689 F Sup 2d 1237 (ED Cal, 2009). The apartment complex’s justifications for these rules were safety concerns and the residents’ ability to enjoy the premises. The federal district court held the following:
- The adult supervision rule for all children 10 and under was overbroad, as it would prohibit a child from reading outside just a few steps away from the apartment. The federal district court did note that a supervision rule for young children might be reasonable, but this rule went beyond that limit.
- For the remaining rules, the federal district court reviewed them under 42 USC § 3604(c), which only requires a notice or a statement that indicates a preference for or limitation on a protected class, such as children and families with children. The federal district court held that they all violated 42 USC § 3604(c) because they all clearly indicated an intention to limit children or families with children.
- “Children will not be allowed to play or run around inside the building area at any time because of disturbance to other tenants or damage to building property.” Fair Hous Congress v Weber, 993 F Supp 1286 (CD Cal, 1997). The apartment complex’s justifications for this rule were safety concerns for the children and maintaining quiet in the community. The federal district court disregarded these justifications, explaining that the rule was so overbroad that it prohibited all children’s play, including a “quiet, safe game of checkers.” The federal district court did note, though, that adult supervision of very young children during specific activities, such as swimming and bike riding, may be permissible.
- “During the summer season when the pool is open, the Recreation Center Manager will unlock the Clubhouse for ADULT USE ONLY,” “No member or guest under the age of 14 may use the pool or spa unless accompanied by an adult (19 or older) member or adult guardian authorized by an adult member,” “Guests are limited to six (6) per household. Residents 14 through 18 years of age are limited to one guest per person notwithstanding the household limit,” “Adults have court privileges over children after 3:00 p.m. weekdays and any time on weekends or holidays,” and “Quiet Swimming Only in Pool & Jacuzzi.” Hill, supra. The homeowners association’s justifications for these rules included concerns of damage and vandalism, overcrowding, and possible criminal activity by teenagers. The federal district court rejected all these justifications, explaining that the rules were overbroad and also noting:
- Adults can also overcrowd and vandalize the pool and surrounding area, yet adults were allowed up to six guests. River Run offers no justification why teenagers with six guests are more problematic than adults with six guests, who would also “take over” the pool to the exclusion of other residents by bringing more guests. Prohibiting certain children from bringing more than one guest to the pool while allowing adults to do so cannot be justified. 438 F Supp 3d at 1176.
What HOA Rules for Common Areas Have Been Upheld?
Below is a highlight of cases from around the country in which the federal courts reached a different outcome and held that certain rules and regulations did not treat children or families with children differently or that, even if they did, there was a legally sufficient, legitimate, and non-discriminatory justification:
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- “The Landlord prohibits bicycle riding, skateboarding, rollerblading, and skating along the common area sidewalks, walkways and parking areas.” Pack, supra. The federal district court held that this rule did not facially discriminate against children or families with the children. While the plaintiffs alleged that it had a disparate impact on children because children engage in these types of activities, the federal district court disagreed, noting that the plaintiffs had not provided any evidence that children are more likely than adults to ride bikes, roller board or skateboard.
- “Bikes, carriages, strollers, tricycles, wagons, etc. must be kept inside apartments or in garage area and not left outside.” Weber, supra. The federal district court held that this rule did not facially discriminate against children or families with children and that the apartment complex had a legitimate interest in keeping its narrow sidewalks from being blocked by tenants’ personal property.
- “Gym/Sauna is off limits to anyone below the age of 19,” “Children under 19 years of age cannot be at the pool without the accompaniment of an adult,” “Children 17 and under must be supervised by an adult older than 19 years of age when out on the property; excluding travel to and from the school bus area,” “All children under 18 years of age unless accompanied by an adult must be inside of their apartment no later than 8:30 pm,” and “The use of the playground is only for elementary children, grades K-6.” Belcher v Grand Reserve MGM, LLC, unpublished opinion and order of Judge Keith Starrett, issued Sep 25, 2018 (Docket No. 2:15-cv-834-KS-WC) (MD Ala). While the federal district court did not specifically state that these rules facially discriminated against children or families with children, the court still held that the rules did not violate the Fair Housing Act because they all were in response to actual, legitimate safety concerns:
- The evidence at trial revealed a host of problems caused by children running amok in the apartment complex. Residents found used condoms and marijuana on the playgrounds. Children were engaging in sexual activity on the premises, and residents found a little girl’s underwear in the sauna. Children were destroying the gym equipment, vandalizing the property, and preventing other residents (including children) from enjoying the amenities of the apartment complex. Id. at 8.
Two Guiding Principles When Drafting HOA Rules for Common Areas
The above cases help illustrate the following two guiding principles a condominium or homeowners association should consider when drafting common area rules and regulations:
1. Draft uniformly-applicable rules and regulations. Whenever possible, rules and regulations should be drafted to be applicable to all members, residents, and guests. Pack and Weber underscore that rules and regulations that apply to everyone, such as a general prohibition against obstructing common areas and limitations on guests, are less likely to discriminate on the basis of familial status.
2. Narrowly tailor limited or no access and supervision rules to the particular, actual concern being addressed. If a condominium or homeowners association is going to prohibit children from using a common area, limit their access to a common area, or only permit them to use a common area with adult supervision, those rules and regulations should be narrowly drafted to address a particular concern that is not based on stereotypes of children. The Sonoma Bay, Iniestra, Pack, Weber, and Hill cases all demonstrate examples in which a community association or apartment complex attempted to address a particular concern, such as pool safety or safety near high areas of vehicular traffic, but did so through broad rules that went beyond that concern (i.e., adult supervision required whenever a child was outside). Furthermore, Belcher emphasizes that a condominium or homeowners association that intends to prohibit or limit children’s access to certain common areas must have supporting, justifiable evidence that is based on actual facts within the community and not just stereotypes of children. While the rules and regulations in Belcher clearly were facially discriminatory against children and families with the children, the apartment complex was able to point to actual instances of children engaging in criminal, dangerous behavior and vandalizing property and connect its rules and regulations to those incidents.
Even with these two guiding principles in mind, condominium and homeowners associations that already have common area rules and regulations in place or plan on creating them should work closely with a community association attorney to help craft and revise them. Even rules and regulations that are uniformly applicable to everyone, such as “quiet swimming only,” may still have a disparate impact on children and families with children and violate the Fair Housing Act and, as the cases in this article demonstrate, whether a rule or regulation discriminates based on familial status is highly dependent on the facts within each particular community. If your condominium or homeowners association would like assistance in creating or amending your common areas rules and regulations, please feel free to contact us.
Kayleigh B. Long is a senior attorney with Hirzel Law, PLC and focuses her practice in the areas of community association law and appellate litigation. Ms. Long obtained her Juris Doctor degree from Indiana University Robert H. McKinney School of Law, where she graduated in the top 5 of her class and served as the Senior Executive Editor on the Indiana Law Review. Ms. Long has been recognized as a Michigan Rising Star in Real Estate Law by Super Lawyers since 2020, an award given to no more than 2.5% of the attorneys in the State of Michigan. Ms. Long has also made numerous presentations on community association law, along with having articles published in the Michigan Real Property Review. She can be reached at (248) 986-2290 or klong@hirzellaw.com.
