With school out for the summer, many clients are reporting that children are causing an unusual amount of problems at their communities. Unsupervised children with too much free time and too little to do are disturbing the peace at some communities. Now is a good time to brush up on appropriate community rules for children and dealing with children causing problems at your community.
Dealing with problems caused by children at your community is difficult for numerous reasons. Supposedly, in June and Ward Cleaver’s time if a child got out of line, you just told the parents and that was the end of the problem. Unfortunately, this doesn’t seem to work well today. If a parent were present, the child probably wouldn’t have gotten into trouble. The reality is that some parents view the community as free day care, and provide little or no parental supervision. Even if it were legal, which it’s not, you can’t force a resident to supervise and discipline their child. In addressing problems caused by children, you must be aware of fair housing concerns. Frequently, onsite management has difficulty in addressing lease violations by children because management is not certain whose child is causing the problem and don’t know which unit the child lives in.
When children cause problems, the most common response is to make more rules. Since we won’t tolerate this conduct from a child; we will make a rule preventing this undesired conduct. However, fair housing laws prohibit communities from making rules that target children. Specifically, fair housing laws prohibit discrimination against families with children. Children have the same right to use and enjoy your facilities and your community as adults do. Any rule that unreasonably or unfairly restricts children’s activities, or use of your community may draw a fair housing discrimination complaint. Overly restrictive child rules may lead residents to conclude that you are prejudiced against children. Rules prohibiting children from playing anywhere at the community, or requiring children to be supervised by either a parent or an adult at all times, are examples of overly restrictive rules that we see.
While as a general rule you cannot make rules specifically targeting children, you can make rules that apply only to children based on health and safety concerns. We cannot overemphasize that this exception to the general rule is very limited. Any age restrictions based on health and safety must be supported by legitimate nondiscriminatory business reasons, and must be based on solid facts and rationale. Every rule can’t be justified because it is designed to protect the “children.” You must have some basis for age restrictions. Although setting age restrictions can be difficult, there are some legitimate nondiscriminatory business reasons for setting certain age restrictions.
While saying “I did it because Johnny did” won’t get you out of trouble as a kid, what governments, businesses, and other communities do is support for age restrictions at your community. For example, almost all communities require children under a certain age to be supervised by an adult at the community swimming pool. The commonly accepted age is fourteen. There is not much basis for this age, other than it is the commonly accepted age. Similarly, local codes or ordinances may provide justification for age restrictions. If a local code sets an age restriction, you can’t set your age restriction at a higher age. For example, if a local ordinance requires a child under the age of 14 to be accompanied by an adult at a swimming pool, you must not set your age restriction at 16 years old.
Many fitness equipment manufacturers recommend that the equipment not be used by children under certain ages without adult supervision. This provides you with a legitimate nondiscriminatory business reason for setting the age restriction. If you can’t find any manufacturer’s recommendations, and no local ordinances are applicable, check with surrounding public or private facilities that provide the same amenities or facilities for their age restrictions. For example, what are the age restrictions at the Highlands Ranch Community Center, or at the local 24 Hour Fitness®? The restrictions might not always be ideal, but at least now your restriction isn’t being pulled out of the air.
The key to avoiding trouble over rules that children may frequently violate is to target or address conduct, and not classifications of residents. Perform a word search on your lease documents. Search for the words “child,” “children,” and “parent.” If the particular rule found is not based on a health or safety reason, you should substitute the word resident for child. For example, if your community has a rule that children may not play in the hallways, the rules should be rewritten to state that residents should not play in the hallways. If you do have a legitimate safety reason for making a child specific rule, make sure that the rule states that adult supervision is required, and not parental supervision.
When children run amok without adult supervision, communities may crack down by requiring that children be supervised at all times. As discussed, this rule is not going to fly. We have discussed this with the Colorado Civil Rights Division (“CCRD”). The CCRD agrees with our assessment that a property cannot adopt a rule that all children must be supervised at all times. This rule is overly restrictive in the CCRD’s opinion, and implies a prejudice against children. A constant supervision rule thus constitutes familial status discrimination under both federal and Colorado fair housing law. Colorado law does not set an age that the law requires parental supervision. The law only states that it is a form of child abuse or neglect not to supervise the child under such circumstances that a reasonably prudent parent would provide supervision. While the law does not set an age, the law along with your lease provides tools for dealing with children causing problems. If children are not being properly supervised when a reasonably prudent parent would supervise them, you can report that parent to Child Protection Services. Similarly, almost all leases require residents to comply with all laws. If the resident is not supervising their child when a prudent parent would, the resident is violating the law, and thus the lease, and an appropriate compliance demand should be issued. For example, “your four-year old child wandered unattended out onto the frozen pond. Failure to supervise your child under such circumstances violates the law, and thus your lease.”
If children have taken over your property, enforcing the lease is one way to take control back. Evicting residents for serious breaches of the lease by their children will send a strong message throughout your community that residents will be held accountable for their child’s unacceptable behavior. However, as previously mentioned, identifying children can be a major obstacle to enforcing your lease. When many children are involved in a property problem, onsite staff sometimes can’t either identify the children, or more importantly can’t associate the children involved with their apartment units. Unless you know where a child lives, you can’t issue a demand for compliance or possession to their parents. Similarly, in order to investigate a complaint Child Protection Services needs the names and addresses of the parents or adults who are not providing adequate supervision. If you don’t know who the child’s parents are, you won’t be able to provide their names.
If you’re not familiar with the children in your community, you need to become familiar. Obviously, this will be more difficult on a large community. Digital cameras are everywhere today. Take digital photographs of residents, including children, when they are breaking your lease to assist in identification. To assist with security related matters, your community could require current photographs of all residents at move-in. Many communities host resident events. Make it a point to regularly attend these events and become familiar with children and their parents. Your lease can’t require that parents or adults constantly supervise children. However, residents (parents) can be held responsible for a child’s lease violation if your lease contains appropriate language. For example: “regardless of whether specifically stated in any Lease provision or Addendum, Resident is always and at all times responsible for the conduct of, shall be liable for, and shall also be in default if any occupant, family member, children, guest, invitee, or any other person about theb Premises or Agent or Owner’s property due to Resident, or with Resident’s knowledge or consent, breaches or fails to observe any of Resident’s covenants, promises, or obligations contained in this Agreement or Addendums.”
Curfews offer little assistance to onsite child problems for two reasons. First, very few jurisdictions have curfews. Second, most curfews only prevent minors from being out after 11:00 p.m. or midnight. Since many problems occur during the daytime, stepped up courtesy patrols during the daytime, at least temporarily, are more effective. Because many owners won’t pay for increased patrols, some properties utilize off duty police officers to monitor the property. The off duty officers receive free or reduced rent in exchange for monitoring the property, reporting, and dealing with problems. A smart aleck nine-year old is less likely to tell an off duty police officer to get lost.
If children have taken over your property, you will only get control back when you consistently take enforcement action. When dealing with child-related issues, don’t assume that a child’s violation of your lease documents is a unique classification. If an adult did the same thing and you could take action, you don’t need any new rules. In fact, you shouldn’t make special rules for children except for the limited safety situations. Finally, take consistent enforcement action to avoid charges of discrimination. If you serve a compliance demand when a child does something, make sure you serve a compliance demand when an adult does the same thing.