Kids in Parking Lots

A Quick Look At Safety And Fair Housing Rules

By Ellen Schuster, Esq. 

THE IDEA OF kids playing in parking lots makes directors and managers wince – and for good reason. The potential for injury evokes concerns about safety and association liability issues. But boards must balance these concerns with restrictive rules that may violate fair housing laws.

Like landlords, associations have the duty to protect residents from foreseeable risks of harm. Frances T. v. Village Green Owners Association (1986) 42 Cal.3d 490.¹

It is foreseeable that people – especially children – who play in areas where cars are driving may be hit and injured by a car. This means that the association may have a duty to protect people from the risk of being hit and injured by a car. To meet this duty, many boards adopt rules prohibiting play or recreation and requiring children to be supervised by adults when in common area parking lots. Sounds simple enough, right?

Simple solutions become complex when fair housing laws are considered. Briefly, the Federal Fair Housing Act prohibits discriminatory housing practices against people in protected classes. One protected class is familial status, which includes families with children. Discrimination includes disparate impact – where people in a protected class are negatively affected by rules, even if those rules are the same for everyone.

Prohibiting play and requiring children to be supervised by adults when in common area parking lots may be found to have a disparate impact on families with children. This means that well-meaning boards with no intention of discriminating against families with children may put the association at risk by adopting such rules.

To illustrate the issue, consider a very common association rule requiring children under 14 to be supervised by an adult at the swimming pool. The rule was likely adopted to protect children’s safety and reduce the association’s risk of liability. However, the rule negatively affects families with children and is not necessary to protect safety and mitigate liability. A seven-year-old on a swim team may be a much stronger swimmer than the average adult, yet the child is subject to supervision while the adult is not. A neutral rule, such as "Anyone who cannot swim safely without supervision must be supervised," would carry significantly less risk.

Similarly, rules restricting "play" and requiring adult supervision of children in common areas has a discriminatory impact on families with children and are not necessary in the way that they are often drafted to protect safety. Accordingly, those rules subject associations to potentially significant liability. To mitigate that risk, boards can consider a few different approaches:

• Adopt neutral rules.
  Consult with association legal counsel to draft rules which do not have a discriminatory effect or disparate impact on protected classes of residents.
• Implement safety measures.
  Consider adding speed limit signs, speed bumps, mirrors, or other improvements to parking lots and other driving areas. For associations with significant concerns, consulting an expert may be prudent.
• Confirm insurance policies are up to date.
  Consult with the association’s insurance broker to confirm whether current policies provide adequate coverage for the risks at issue.

With a few steps, boards may be able to address safety concerns in parking lots while also mitigating the risk of running afoul of fair housing laws.

Ellen Schuster is an attorney at Berding & Weil, LLP, where she practices corporate and business law, focusing on advising community associations on their operations and transactions, including real property issues and statutory compliance.

1 There is much caselaw regarding a landlord’s duty of care and whether and how such a duty may be breached by directors, which we do not take up here. Consult legal counsel for more information about this line of cases.