A response to Scotty

In comments, reader Scotty is of the opinion that the HOA has absolute power to regulate the behavior of children. I won’t quote the comment in this post because it is too long. You can read it here. His opinion essentially boils down to “the HOA can enforce whatever rules they wish” and is incredibly incorrect.

HOA’s have legal restrictions on what the covenants and bylaws can contain. The behavior of children is not among them. The HOA doesn’t have plenipotentiary power to rule over whatever they wish. Let me explain the law to you:
The HOA can only take your house under very limited circumstances. Your children playing outside isn’t one of them. HOA set rules and bylaws are for the common areas only. They cannot control what happens on private property. That has to be done in covenants.
The covenants are rules that govern private property, but they can only be changed by a vote of all of the homeowners of a community, and even then it takes a 2/3 majority of all homeowners.
Scotty’s statement about satellite dishes proves my point. HOAs can’t regulate them because they don’t have the legal authority to do so. The DO have the authority through the covenants to regulate having swing sets in the front yard.

Even the covenants don’t confer power to the HOA to regulate the behavior of anyone with whom they disapprove. HOAs aren’t above the law. They should avoid transgressing local, state, and federal laws; otherwise, they may find themselves in a legal quagmire. For example, all HOAs are subject to the Federal Fair Housing Act. To refresh your memory, the Fair Housing Act bans discrimination in housing-related transactions on the basis of race, color, national origin, religion, sex, familial status, and disability. “Familial status” has been interpreted by the courts to apply to rules governing families with children.

A great example of how this is applied is the case that involved the owner and management company of The Orchards at Cherry Creek Apartments in Centennial, Colo.. They had a rule that said:

All children must be supervised by an adult at all times while playing outside. No sports activities, skateboarding, roller-blading, or general extracurricular activities are to take place in our community. If we see anyone violating any of the above activities or see any unsupervised children they will be sent home immediately.

A set of parents filed a complaint with the local HUD office. The HUD director sued the management company, and the suit was eventually settled out of court. The settlement requires the owners to, among other things, build a $10,000 playground and train all employees in the requirements of the Fair Housing Act. HUD also made this statement when announcing the settlement:

A requirement of constant parental supervision of all minors, and even teenagers, is oppressive, unnecessary, and unfairly burdensome on families with children. The Fair Housing Act protects the rights of families with children to enjoy the same housing amenities that others do. In this case, there were a number of policies that singled out and targeted children for regulation in the property. Many of those rules and policies might be designed to protect health and safety, but they’re targeted at children.

Robert Galvin, a partner at Davis, Malm & D’Agostine PC in Boston who specializes in representing HOAs, condos, and co-ops had this to say:

The interesting thing is that these laws apply in areas most people wouldn’t think they apply in. In a lot of condos, there are rules that people under a certain age, say 16, can’t go into the pool at certain times. That’s the sort of thing that makes intuitive good sense to people, but it’s potentially illegal. You can have a rule or a bylaw that on its face may look innocuous but in actual practice has the effect of discouraging families with children, and that’s illegal.

Sarah Pratt, deputy assistant secretary for enforcement and programs at HUD’s Office of Fair Housing and Equal Opportunity in Washington, D.C. had this to say on HOA rules aimed at children:

We’ve even seen a case where a property management company basically said children couldn’t play outdoors after 6 or 7 in the evening. That’s very restrictive and could be considered to be highly negative toward families with children. If you’re addressing a concrete, identified problem, make sure you identify that problem and address it for anyone, whether they’re children or adults who might be engaging in the practice. And make sure, if you have a group of policies, they don’t add up to sending a message that children aren’t welcome there, even if you address the problems to everybody.

That’s just for the Fair Housing Act. The family can issue a formal warning if an HOA acts harshly against a child. If the HOA ignores their warning, they can sue the board for discrimination and harassment. Such a lawsuit can tarnish the HOA’s reputation and result in millions of dollars in legal liability.