Forbes Bender & Paolino P.C.

Curfew Rules and Homeowner Associations

By Alexander D. DiSanti, Esq.

Introduction

Summertime conjures up a lot of images.  The weather is warmer.  The sun is hotter.  Clothes are lighter.  Spring has caused nature to burst with color and activity.  The vacation at the shore is no longer a distant reality.  You can smell the salt air as you daydream about the beach and the ocean surf.

Homeowner associations provide families with children a host of amenities and a feeling of belonging to a neighborhood.  Summertime with daylight hours extending into the evening changes the behavior of everyone, including children.  School is now a memory.  Their lives are less structured, and free time may be more plentiful.

These factors can lead to dilemmas for homeowner associations.  There may be complaints from residents about children congregating in common areas and being noisy into the evening hours.  There may be concerns that the common areas will be vandalized by the youth of the community.  The board is approached with a suggestion that perhaps these concerns should lead to action.  Someone proposes that the board should impose a curfew on the children in the association.  Another voice wonders whether this is legal and, if it is, what issues need to be considered?

This article will address these important issues from a legal standpoint.  There are certainly requirements that must be followed, as well as limitations to the exercise of this police power by an association.

General Legal Principles

A homeowner association has the right to implement curfew laws.  This right may be restricted by the laws of a particular state or other governmental entity.  Therefore, it is important to understand the laws of a particular jurisdiction that may pertain to this subject matter.

The right to impose a curfew must be contained in the rules and regulations of the association.  The board must determine if this right is contained in the rules and regulations.  If not, the board must take the necessary steps to amend the rules and regulations to allow for a curfew rule.

The curfew rule must provide specifics.  The hours of the curfew must be addressed, as well as the ages of those affected by the curfew.  These should not be arbitrarily chosen by the board.  The board must be mindful that the association cannot discriminate against children or families with children.  Having rules that are directed to children is a form of discrimination, just like having rules directed at people of a certain race, religion or national origin.

For example, in most cases, restricting children from association facilities is illegal.  Fair Housing laws need to be considered.  A legitimate exception to this general rule of illegality is when governmental authorities have set restrictions, relating to a certain subject matter.  For example, there may be a governmental restriction forbidding someone below a certain age from using a pool without an adult present.  A law may require that diapers be worn by certain people while using a pool.  Similarly, a manufacturer of a product may provide restrictions relating to the age and weight of a user of fitness equipment.

The basic rule is that curfew rules cannot be more restrictive than local governmental curfew laws.  If the rule is broader than the law, Fair Housing laws may be violated.  If you are not sure of the curfew laws in your municipality, consult the city/township/borough website for specific information.  Otherwise, contact the governmental agency and ask for this information.  The board will want to obtain a copy of all applicable laws.

Municipalities that have curfew laws impose fines and/or penalties on the children in violation of the law, depending upon their age, and the parents of the children.  Once the rule has been put in place, how is the rule enforced by an association?  The association cannot arrest a child.   The simplest approach is to contact the local police department and advise of the curfew violation.  Remember, the law that the police department is being asked to enforce should contain the same standards as the rule that the association is seeking to enforce.  This permits the police to handle the situation without forcing the association to deal with the situation.

There is a caveat.  The police department may not think that it has authority to enforce the municipal ordinance.  The municipal ordinance will contain restrictions, making it necessary that the violator be in a public place.  The police may question whether the common areas of an association are public places.   This issue arises because the common areas are owned by the association, not the general public.  Unfortunately, the police may decide not to handle the complaint by the association.

Accordingly, the rule created by the association must contain a penalty.  This is usually in the form of a fine that is imposed when the curfew rule has been violated.  The rule should be specific about who is fined and how much the fine is.  The rule can contain authority for higher fines for repeat violators.  The association must be careful to follow due process when determining whether a rule has been violated.  The violator must be given notice of the rule violation and an opportunity to be heard.

Case In Point

In 2009, a state Department of Fair Employment and Housing investigated a complaint, alleging that Hidden Valley Lake Association had discriminatory rules and practices that affected children and families.  The complainant said that these rules and practices violated the federal Fair Housing Act.  HUD accepted the complaint and referred it to the state for further action.

The complainant alleged that the association’s practices discriminated against familial status and said that the rules were too restrictive toward anyone under the age of 18.  Specifically, he said that the association’s rules restrict children ages 13 to 17 from using tennis courts owned by the association.  He also questioned the association’s rules that prohibited babysitting children on the tennis courts.

There was also a complaint that the curfew rules were too restrictive toward minors.  The association had a curfew for children under the age of 18 between 10:00 p.m. and 6:00 a.m.  This was broader than the county’s curfew for minors, which was from 11:00 p.m. to 5:00 a.m.  The county curfew law also contained many exceptions, while the association’s curfew rule contained none.

The parties apparently reached an agreement to resolve the dispute. The terms of the agreement are not important for our purposes.  This case illustrates the sensitive nature of these issues.

Pennsylvania Law

This writer could not uncover a reported Pennsylvania case, relating to curfew rules and homeowner associations.

Conclusion

Curfew rules implicate a number of issues and concerns.  The association must make choices, both in terms of what specific provisions are contained within the rules and regulations and in the application of those rules to the real world.  It is recommended that these specific rules be reviewed periodically.  The association must be vigilant for changes made to curfew laws by a governmental agency to be sure that the rule is consistent with the law and not more restrictive.  As always, common sense and decency are the pillars of successful property management.

Alexander D. DiSanti, Esq., is an officer of Forbes Bender Paolino & DiSanti, P.C.  Forbes Bender Paolino & DiSanti, P.C., is a full service law firm with offices located in Delaware County (Media) and Chester County (West Chester), Pennsylvania.  Alex has been representing condominium and homeowner associations for over 25 years.  He has the highest lawyer rating given by LexisNexis Martindale-Hubbell of AV Preeminent.  Alex was selected for inclusion in Pennsylvania’s Legal Leaders Presenting Top Rated Lawyers for year 2013.  At the request of the National Business Institute, he has served as a faculty member and instructor of Legal Aspects of Condominium Development and Homeowners’ Associations, a legal education seminar for lawyers.  Alex can be reached at (610) 627-1700 or adisanti@fbpdlaw.com.  His website can be visited at www.fbpdlaw.com.