limiting children in an COA

We have a rule (not in our Bylaws or Declaration)that limits the occupancy in a two bedroom condo to no more than four people (legal) but we also have a rule that says you can't have more than two children under the age of 13. This seems like it would be considered discrimination against families under the fair housing act.
Then again Ohio state law allows boards to adopt rules that regulate the use or occupancy of units ... so I am confused.
Have any of you had to deal with this problem ? We have a single mother with three children under the age of 13 who wants to rent here.
Thanks,
Fred

I agree with Jeff. My condominium association is an exception to the age rule since we are a senior community. But all that are not senior communities can not limit based on age.

Thanks for your thoughts. However, you can legally restrict the number of people who can live in a two bedroom condo.In Ohio that number is 4 but I think you are right about the age although I qusetion why the State law says you can adopt rules that regulate the use and occupancy of a unit.
Fred

Fred,

You can adopt rules that regulate the use an occupancy of a unit as long as those rules don't conflict with some other law. A couple of things to remember:

1. If there is a conflict between a federal law and state law, the federal law applies, in most cases. In other words, if state law says you can adopt rules relating to occupancy, and your rule violates federal law, then federal law prevails, regardless of what your state law says.

2. No contract provision or rule can violate any law, be it a federal, state, or local law, applied in that order. Such provisions are deemed unenforceable. In other words, if your rule violates a law and if the matter ends up in court (either by you or the other party filing suit), the court usually will decide based on law, not upon the provision you are attempting to enforce.

This is a rental situation? I am confused a bit. Does your COA require to approve renting out units by owners? Seems this would be a owner/tenant issue not the COA's. What involvement does it have in the owner/tenant relationship? There shouldn't be one unless it's in your documentation.

Yes, you are right the COA can adopt it's own rules per the state. Which if they have limits, then it can be enforced.

I don't think overall the COA should be involved with this contractual agreement between the owner and their tenant. I think if there is a violation, then the COA holds the owner responsible NOT the tenant. The reality is that a single mother and 3 kids do need a home. Why deny them the oportunity?

'..but we also have a rule that says you can't have more than two children under the age of 13. '

What is this country coming to? Only an idiot could come up with such a restriction.

i will take this bait...not sure of your situation but with two kids under 13 myself I would consider myself an idiot for adding another!

Brad..........


I vote for this reply to receive an award for the funniest post of the year!

Ann

well the present board didn't put that rule in there and as I said we removed it because it does conflict with the fair housing act. Although when I called the state fair housing dept they said it was a "gray" area. Obviously those who responded negatively have never lived under a unit with young children. People just have no considferation for other people anymore, so we try and protect the best interests of all owners anyway that's legal.
Yes we have rules against noise and that usually comes down to a he said / she said situation.

Fred, why are you making noise a BOD issue? It's an dispute between two property owners that should be solved among them. BODs should only get involved in enforcing of association rules.

Fred,

Children under 13 make different noises than children over 13. I might be inclined to take the under 13 because you can quiet them down with treats. So the justification on an age limit for kids is really bordering craziness and just plain not well thought out. Ignoring all of the FHA laws, if kids are allowed in the developement and the number of people living there with the sq. footage issue being followed, then those who can not tollerate the noise best be ready to leave or buy earplugs.

Kids will never be mute so how would any HOA enforce this? Really not a smart rule to have. It also makes me feel bad that as some of us age, we get less tollerant of those who do not follow our perceived rules that we imagine that we need to be happy.

I remember 60 years ago when my small gang of terrorists rampaged thru our neighborhoods, playing Hide And Seek. i don't remember that being against the rules where we lived.

Fred,

Your post is wandering away from the original question and that was about children under 13 moving in. Noise is an issue for the HOA when 2 neighbors cannot solve the problem with a peaceful dialog. The HOA wrote the rule and they will have the final word. The children under 13 years old is the issue and I agree with a couple of other posters that this really is an assinine rule.

I evicted a tenant (age51) for unreasonable noise from his unit so age is and should not be any issue here.

Donna,
I agree that the post is wandering off topic and I also agree that the rule about 3 kids is assinine which is why we changed it. Believe it or not this is the first time the issue has ever come up. We will however restrict occupants to 4 to a 2 bedroom unit, which is legal and reasonable.
Fred

Fred, what will you do if a family of 4 lives in your community. Lets say husband/wife and two kids. At some point they have a 3rd child. Will you evict them?

Jeff,
We do stay away from disputes as much as possible but sometimes it starts affecting more than the parties involved. If there is a family of 4 and they have a child there is nothing you can do. The law allows them to continue to live there.

Fred,

Florida helps me to be a good landlord by having landlord and tenant rights laws. One of those sets of laws gives the ONLY reasons that a tenant may be evicted and having kids under 13 is definitely not one of them. Several of my rental associations have rules that they call a "pre resident interview" In reality it is not an interview but a reading of the rules and regs, to which the tenant signs off that they have read and understands them. For instance, if it says no pick-up trucks, one better not buy that truck after they move in. No parking other than in the assigned spot, no car washing except in the wash areas and so on.

Now the HOA has a document signed by a tenant or owner saying that they have read and understand the rules. No one ever comes back and says that "they didn't know" My leases state that the tenant has signed the HOA agreement. It ain't that tough to keep reasonable order if the HOA and owner are diligent in their paperwork prior to renting a unit. But this is not your problem. Yours is a question about the potential of noisy kids. Maybe cross that bridge when you come to it?

Ohio also has landlord tenant rights.
We are off topic here but I think it is pretty well established that federal fair housing law doesn't allow limiting the number of children, noisy or otherwise.
However it is interestingg that someone else has a simiar renter's agreement to ours.
The Renter's Agreement" that tenants sign with our association isn't really intended to be an enforceable legal document. It is a signed statement that the tenant has received a copy of our rules and regulations, has read them and agrees to abide by them. It lists the number of occupants, vehicles, length and dates of lease and specifically lists several rules that tend to be the biggest problems. It is signed by both tenant and landlord.
It helps back up what landlords tell their tenants and makes sure tenants know they are living in a community of private homes subject to governing documents and not a commmercial apartment building.
As Donna pointed out it helps eliminates that "I didn't know" factor. Since owners are legally responsible for the actions of their tenants most like this extra backup.

Donna,
I am curious about this "pre-resident interview". How is that conducted and did you, as a landlord, find it was useful etc. ? Was it for new owners before purchase as well as renter's. Was it done by the board as a whole or one board member ?
I ask because we have just discovered that some owner/tenants are just signing the renter's agreement and aren't actually, in some cases giving/ receiving a copy of the rules.
We have talked about requiring approval but decided against it since owners are legally responsible, but any way we can limit "misunderstandings" before people move in helps ensure a better community for all owners and fewer problems for the board.
Thanks,
Fred

Fred,

Yes, as Donna stated many, if not all, HOA covenants in Florida require the BOD to approve lease/purchase applications. Without such ‘Certificate of Approval’ one cannot even purchase a unit. The lease applications have to go thru the same process which includes an acknowledgement that the person occupying the unit has read and is aware of all the rules and regulations. There can be other provisions such as the Association has the right to cancel a lease should the lessee be in non-compliance with the HOAs docs.

I am not acquainted with ‘rentals’ in HOAs since our covenants permit leases only. All leases must be done in writing and for a certain period of time (as stated in the covenants) where the owner transfers all his rights to use a common property to a lessee.

In addition, some Associations have ‘orientation sessions’ with prospective buyers/lessees to further explain their rights and responsibilities. The orientation sessions are done by a board member or so called ‘Welcome Committee’. I do not think, it is a bad idea to spend a half an hour with newcomers even if the docs do not require it.

I'm not sure why it would be illegal to require a tenant to sign something stating that they would abide by the rules that govern the Association they reside in. We can legally evict tenants that don't abide by the rules and according to Ohio State law we can adopt rules that regulate the use and occupancy of units. Would this be a Florida State law ?

Petunka,

This is from one of my above posts

" We have discussed this at great length here on this site. The concensus of opinions is that doing this is either illegal or bordering on it.

I think that we have come across this or similar questions of what a HOA can legally do with perspective buyers or renters for as long as I have been here, over 5 years. Consensus of opinions certainly is not the gospel so everyone can just make their own opinions. As I said, would a document stateing that someone would obey the rules stand up in a court? I don't know.

It would however be illegal to prevent a person from buying a property if they don't pass a 'welcoming committee'. After all there are still laws protecting our rights to property. (Jeff)

Jeff,
I did NOT say one has 'to pass a welcoming committee ' in order to buy a property. Do not twist the facts, please..

You can require language, but you still cannot enforce illegal rules. Even if a black renter signed a lease stating "no black people" doesn't mean it can be enforced even though he signed it.

I wish we could rely on owners to properly inform their prospective tenants of the rules they will be required to follow but many don't. Number of parking spaces, number of occupants, fining procedures for non-compliance,car maintenance on property, pets etc. etc.
Waiting until after they have moved in is not the best way to avoid problems.I can find nothing in Federal,State or our CC&R's that would make signing such a document illegal.It wouldn't need to stand up in court as a "legal" document anyway, but it would be evidence that the landlord and tenant had been informed of the rules and had agreed to abide by them.
You can't rely on landlords to put these things in their lease either.Some owners haven't even read the rules.

Fred, I am with Petunka on this one completely.

If there is a problem with an owner when leasing their unit you need to go after the owner, not the tenant. We also require all leases to be submitted to the board after they are executed. If we don't see required language in the lease we go after the owner requiring him to add it.

I agree, there is nothing illegal about asking someone to sign such a document, it's preventing them from buying/renting if they don't sign it might be questionable.