What Your Community Association Needs to Know About Pickleball
Pickleball. It’s the fastest growing sport in America for the past three years in a row, even if it has a silly name (rumor is that it was named after one of the inventor’s dog, Pickles). But there is no denying that pickleball has a large number of enthusiasts that range from young kids to senior citizens. With the growing popularity of the sport and the wide range of ages able to play, community associations almost certainly have owners who would like to have a home pickleball court in the community. This article identifies some issues and concerns that community associations, both homeowners associations and condominium associations, may face through the increasing popularity of pickleball.
Authorization to Build Pickleball Courts: Build It And They Will Come
The easiest way for an association to build a pickleball court is to repurpose an existing tennis court. With only needing to add lines for the court and a net, an existing tennis court can accommodate between two and four pickleball courts. The difficulty with this approach is that there will likely need to be coordination of court times between tennis and pickleball players.
If the community does not have an existing tennis court or other facility, then one will need to be built. As an initial step, the board should solicit input from the community for whether a new pickleball or multi-sport court is desired. After there is sufficient interest, a location that is under the association’s control, being the common areas in a subdivision or the general common elements in a condominium, will need to be selected. Once the board finds an appropriate location, the homeowners association or condominium association will need to raise the funds to pay for the construction of the pickleball court if it does not have the necessary amount in its operating account. It may not be wise to use funds in the association’s reserve account, which is intended to pay for major repairs and replacements of the items that the association is responsible for.
If the HOA or condo association does not currently have the necessary funds, it will need to raise the money through assessments. Depending on the association’s governing documents (the restrictive covenants or CC&R for a homeowner association and the master deed and bylaws for a condominium association), there are typically three types of assessments that an HOA or condo association can levy: an annual assessment, an additional assessment, and a special assessment. An association can include the cost of a pickleball court in the annual budget and thereafter in the annual assessment. Typically, an additional assessment may be levied for the purpose of adding to the common elements or common areas without a vote of the members, usually subject to a maximum dollar amount. A special assessment, on the other hand, may be levied to add to the common elements or common areas for a dollar amount above the maximum for an additional assessment and typically at least a majority vote of the members.
After the funds have been raised, the association should amend its governing documents to include the pickleball court as a common element or common area, as well as the responsibilities for maintenance, repair, replacement, and insurance. Because the pickleball court would be available to all owners in the HOA or condo, the on-going maintenance costs would likely be included in the annual budget and assessed against all owners as an expense of administration.
Men’s Only and Women’s Only Times
Some community associations may wish to allocate times for only men to use the pickleball court and other times for only women to use the pickleball court. This arrangement, however, should be avoided to minimize the chances of an unintentional violation of the Fair Housing Act, 42 USC 3601 et seq (the “FHA”). Under the FHA, a housing provider, such as a condominium association or homeowners association, is prohibited from discriminating “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 race, color, religion, sex, familial status, or national origin.” 42 USC 3604(b). This includes “[l]imiting the use of privileges, services or facilities associated with a dwelling because of race, color, religion, sex, handicap, familial status, or national origin of an owner, tenant or a person associated with him or her.” 24 CFR 100.65(b)(4).
Most condominium and homeowners associations have the power to adopt rules and regulations under their governing documents. But when a rule “facially discriminates on the basis of a protected trait [such as sex], in certain circumstances it may constitute per se or explicit discrimination because the protected trait by definition plays a role in the decision-making process.” Curto v A Country Place Condominium Ass’n, Inc, 921 F3d 405, 410 (CA 3, 2019). A rule that allows only men to play pickleball at certain times and only women to play pickleball at other times likely facially or expressly discriminates against the opposite sex by preventing women from playing during men-only times and vice versa. By enacting a rule that expressly regulates the access and use of pickleball courts on the basis of sex, a condominium or homeowners association could potentially face liability under the FHA. Instead of adopting a rule for men-only and women-only times for pickleball, a community association could consider designated reservation-only times when the court must specifically reserved and then open times when anyone can play pickleball on a first-come first-serve basis.
Rules to Consider for Pickleball
With the increasing popularity of pickleball comes a host of challenges. To solve these challenges, the pickleball players, a.k.a. picklers, will look to the board for help. By adopting rules consistent with the homeowner association’s CC&Rs or condominium bylaws, the board can get in front of common concerns and issues presented by pickleball.
Hours of Play.
Consider implementing operating hours for the pickleball court so that morning play doesn’t wake up nearby owners who treasure their sleep and evening play doesn’t disturb nearby owners who are relaxing for the evening. Without setting reasonable timeframes that the pickleball courts are available for use, there is a chance that picklers will play from dusk to dawn.
Noise.
Communities close to pickleball courts have complained about the noise that is produced when the paddle hits the ball. Limiting the hours that owners can use the pickleball court can set a timeframe for any noise. But within the allowable times for pickleball, the paddle noise and other sounds will be present. In an effort to decrease the noise that a paddle makes when hitting the ball, an association may adopt a rule requiring players to use quiet paddles, paddle sleeves, or quiet balls approved by USA Pickleball for acoustic equipment.
Availability to Play.
Implementing a rule about the availability of the pickleball court will hopefully decrease wait times and arguments about who is next to play. One way to implement this is through a reservation system, where owners must reserve the court for a set amount of time. Once the reservation time is over, those owners must give the court to the next reservation. Apart from reservations, a rule could state that the court is available on a first-come first-serve basis. In this arrangement, each owner or team is only allowed to play one game and then must allow for the next owner or team in line to play.
Conclusion
Pickleball is a great way for owners to stay active, engage with the community, and have a fun time. All that is needed is a court, a paddle and ball, and some guiding rules. HOAs and condos that do not currently have a tennis court or dedicated pickleball court will first need to build one by either budgeting for the expense as part of the annual assessment or levying an additional or special assessment. The association’s governing documents, whether the restrictive covenants or master deed and bylaws, may be amended to address the existence of the pickleball court as well as the association’s maintenance, repair, replacement, and insurance responsibilities. Finally, the board should adopt reasonable rules and regulations concerning the use of the pickleball court to ensure that all owners have an equal opportunity to use the court and the owners living near the court experience minimal disturbances. Thank you to pickler and Attorney Livia Khemmoro for her extensive pickleball knowledge used in this article.
Michael T. Pereira, Esq., is an Attorney with Hirzel Law, PLC and focuses his practice on general counsel matters and document amendments. Mr. Pereira graduated from the University of Detroit Mercy School of Law in 2018, where he graduated magna cum laude and second in his class. Following graduation from Detroit Mercy, Mr. Pereira spent nearly three years with the Michigan Court of Appeals as a research attorney and as a law clerk to Judge Patrick M. Meter and Judge Anica Letica. Best Lawyers: “Ones to Watch” recognized Mr. Pereira in 2024 for professional excellence in real estate law. He may be reached at (248) 478-1800 or mpereira@hirzellaw.com.
