Associations trying to keep their condominium child free may want to think again. Associations which try to utilize governing documents to discriminate against owners with children could find themselves going up against the Department of Housing & Urban Development (HUD) and the Department of Justice (DOJ).

In one case, an association’s management company, the association, and the property manager agreed to settle a suit filed against them by the DOJ regarding allegations of discrimination against owners’ children. The settlement required the association to pay $10,000 in civil penalties to the Unites States and a total of $100,000 to compensate the six families with children who faced discrimination. The association agreed to adopt and implement an anti-discrimination policy, which required familial status based discrimination training for all board members, the property manager, and staff.

The case began in 2010, when an owner became the guardian of his two great-grandchildren, then, ages 7 and 9. The condo association had in place a so-called “children rule” since 1998, which prohibited children from playing in common areas. In 2011, the association amended the rules to also prohibit playing, picnicking, sunbathing, and riding bicycles, tricycles, scooters, skateboards, skates, and rollerblades in common areas. The updated rules were not distributed to residents after their adoption.

The rules prohibited playing, by anyone, but this unit owner was the only resident threatened with fines, despite adults violating aspects of the rules, including riding bikes in the common area. The Association’s conduct is a violation of the Fair Housing Act as the condo association was discriminating against the owner’s great-grandchildren by treating the minors less favorably than other residents. The Association was charged with violation of the Fair Housing Act on the basis of familial status.

Community Associations should adopt rules which are non-discriminatory. For instance, rules which limit the amount of noise residents can make in common areas, especially before and after certain hours. Property damage rules can also be utilized to prevent the destruction of the grass, trees, and greenery, without any discrimination.

It is important to note that the way in which an association’s rules and governing documents are enforced is just as vital as the rules themselves. If a rule is only enforced against specific persons there can be a case for discrimination.