By: Helsing Admin
Question: Can you write about more simple and realistic topics like small kids playing in the street and sidewalk around homes that have detached garages and cars backing into the street?
If only this was a simple issue, but unfortunately it is a very complex one. When and if this is either a real or perceived problem, any association needs to be talking with their attorney about HOA regulations. First of all, nobody wants to see any children hurt. We would all assume that in the case of “small” children, they are not playing anywhere without adult supervision. That said, some parents are more diligent than others. So, the question becomes: when does an issue of children playing in the streets or sidewalks in potentially hazardous conditions move from a parental responsibility to a community responsibility requiring HOA regulations to be enacted?
Certainly, if there is truly a danger that is greater than normal, there may be a requirement for the Board to adopt some HOA regulations. On the other hand, adopting the rule “because the association knew there was a greater than normal danger” could backfire and create a liability where one did not exist. Basically, common sense dictates that parents should not be allowing their “small” children to play in the streets and normally you would think that parents that do not supervise “small” children would be personally liable. However, if the Board takes a position that it needs to act, and they take that position because they feel there are too many irresponsible homeowners, it begs the question that after an accident the claim could be made that the association knew there was an abnormal danger and a rule itself was insufficient – they should have hired guards, or done something else proactive to mediate the danger. Looking at it this way, it is a very complex issue that absolutely should not be made without the Board talking to their attorney.
To make it more complex, there simply may not be an abnormal danger. I have to be careful here because some communities have very busy streets and some are quite benign; and a case can be made that with parents watching, and cars only moving slowly, the association should not need to get involved in that particular situation. Now assuming that situation, as soon as we get another active segment of the community starting to raise the concern of children playing in the streets – a liability has been created just by the fact that the concern itself has been raised. In other words, someone gets hurt and what would normally have been a parental issue is now a lawsuit against the association because this unsafe condition had been raised all too often and the Board did not pass any HOA regulations. Again, I stress how important it is that legal opinion be sought before the Board begins to tackle even the allegations that there is an issue. The response the board makes can in itself create a liability – even when they are trying to solve an actual or perceived problem.
Making it slightly more complex, I am going to take the word “small” out of the picture because it is subjective. Does small mean 2 and 3 year olds? Does it mean 5 and 8 year olds? Does it mean teenagers? Does it mean size? Does it mean physical age?
Passing HOA regulations that say something like “Children may not play in the streets” has a host of related issues. All of us older folks remember playing baseball in the streets. Can the 13-year old, or 17-year old, ride their bike in the streets? If they can’t, can adults? How will you enforce the rule (and any rule you can’t enforce is a bad rule). The laws are full of age discrimination issues that can result in significant judgments against the community. Anytime you are going to pass a rule that differentiates by age you need to get legal advice. (For example, you cannot say children must wear diapers in the pool, but can say incontinent persons must wear diapers in the pool. One is age based – the other is not.)
Basically, while this may seem like a simple question with a simple solution – homeowners saying “The Association needs to do something to stop kids from playing in the street” is one of the very few questions I hate to run into. There are no simple solutions, and great risk if this is an actual problem, or even a problem created by well-meaning concerned homeowners simply by raising the question. All that said, parents – please watch your children until they are old enough to watch themselves (and then of course the concerns get even greater)!
Articles are for advertising and general information by The Helsing Group, Inc. They are not intended to provide legal advice, but rather reflect our opinions as Community Association managers and Consultants. Readers should not act on issues raised in our newsletters or websites without consulting legal counsel.
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