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New York Homeowners Associations and Condominiums are limited in power to control children

On behalf of Steven Waldinger

Boards must carefully craft restrictions on children so as not to violate anti-discrimination laws.

It may seem reasonable to restrict children from playing or biking in certain areas of a
homeowners association or condominium community, especially if traffic compromises their safety or adults complain about the noise levels kids can generate. However, because federal, state and sometimes local laws against discrimination in housing protect families with children based on familial status or age, community associations should seek legal counsel to understand the limitations they face in trying to regulate the conduct of children.

Interpretations of these laws are complicated and fact specific, so governing boards seeking to restrict children in these ways should seek the advice of a community association law attorney who has worked in this area. Ideally, when a board is considering such a rule, its lawyer can assist by crafting it in a way likely to be found legal and within the board’s power.

Sometimes a board can find itself the object of legal action, such as a complaint to a government agency or a lawsuit over such a rule. Of course, the board should retain legal counsel immediately to understand its options for proceeding.

Under the federal Fair Housing Act or FHA, as a type of exception to housing discrimination based on age, senior living communities may be established that allow only senior citizens to rent or own, so long as certain standards are met. However, when a community is not legally designated for seniors only, sometimes a board still wants to restrict what children can do within the community, such as where, when and with what they can play.

The standards that govern such restrictions are illustrated by a 2006 federal case out of New York. In
Khalil v. Farash Corp. , families with children sued the owners and manager of an apartment and townhouse complex over a rule that people could not congregate and kids could not play on the grounds next to the apartment buildings. (Playing was allowed in other designated areas.)

The plaintiffs claimed the rule violated the FHA by discriminating against them because of their familial status, meaning because the families included young children. These families had been cited for violating the rule because their children had played in these areas and their leases either had not been renewed for this reason or, in one case, the family did not seek renewal.

The court found that the evidence showed neither intentional discrimination, nor that the rule as enforced had a discriminatorily disparate impact on the families. In finding no intentional discrimination, the court emphasized: the rule was also enforced against adults who played football or partied, and adult tenants also had their leases terminated for violating similar noise rules; the plaintiffs were only cited for violating the rule when the children were allegedly disturbing the peace or creating danger, not for playing quietly; and no other evidence of “discriminatory animus” was submitted.

For the rule to have had an illegal disparate impact, the families would have had to show that a neutral rule had actually resulted in discrimination. Analysis of disparate impact claims often look at statistics, and the court felt that the number of families cited for violating the rule were too small to be significant.

This case illustrates the kinds of issues faced by boards trying to enact legal restrictions on children in their communities.

With offices in Mount Kisco, New York, Gettinger Waldinger Monteleone Gushue & Hollis, LLP , advises and represents the boards of numerous condominiums and homeowners associations.