Boards of Directors are empowered by statute in Virginia and often times by the governing documents of the community association to enact rules and regulations concerning common areas, common elements, recreational facilities or other areas of association responsibility.  Rules related to the use of common areas or common elements and recreational facilities should be based on concerns about safety, sanitation and nuisance.  In certain instances a Board of Directors may want to enact a rule to address the activities of children – limiting their pool time, forbidding children under a certain age from using recreational facilities or prohibiting certain activities on common areas or elements.  Be careful, the rule you enact may violate the federal and state Fair Housing Act.

According to a Complaint filed against a Chesapeake condominium association, the association had a “Group Sports Activity” rule that banned organized sports activities in the common areas without approval of the board. Concerns were raised whether this rule banned activities such as a parent and child passing a football.The Commonwealth of Virginia’s Fair Housing Board filed a housing discrimination lawsuit against Cedarwood Condominium Association, a Chesapeake condominium association. There have not been many of these lawsuits.

So the board “embarked on an 18-month examination of the [rule].” People complained about children playing in the common area and meeting minutes stated “that many residents were concerned with children playing within the community.” On the other hand, “there were no complaints . . . of adults playing . . . in common areas.”

According to the Complaint, the board then banned any activity that included tossing a ball, arrow, dart or Frisbee in the common area. As could be expected, kids continued to play. One family received notice of a violation and the required $50 fine. Then a few other families received fines because their kids were playing football in the common area. In fact, according to the Complaint, “50% of the families with children” received violations.

Apparently, these families complained to the Fair Housing Board which conducted an investigation. The Fair Housing Board alleged that the association violated the Virginia Code prohibiting housing discrimination based upon familial status. The Fair Housing Board filed the lawsuit after efforts to settle the issue failed through mediation. The association has not yet filed an answer to the lawsuit. UPDATE: A final order dismissing the case was entered in May 2012.

Have your experienced association attorney review the rules for your association, especially if you have rules that only address the behaviors of children in the neighborhood, or limit their use of the common areas, common elements or recreational facilities.  Not all rules regarding children are discriminatory per se. For example, rules that are based on safety and health issues may not be determined to be discriminatory, but if you use safety or health reasons without any basis, your rule may likely be discriminatory.

Tarley Robinson, PLC, Attorneys and Counsellors at Law

Williamsburg, Virginia

John Tarley

John is the firm's managing partner and chairs the firm's small business, zoning, and litigation practice areas.

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