By Eric Glazer, Esq.

Published March 11, 2013

Last Sunday's Condo Craze and HOAs radio show struck a nerve with some listeners. For those of you who missed the show, I discussed the fact that there's an HOA in Pembroke Pines that has lots of kids and lots of families but apparently has a rule that says kids can't play outside in the street.  The 10 year old niece of one of the attorneys in my office was actually approached by the HOA manager and told to stop playing with sidewalk chalk and go inside her house to play.  Now some of you may be thinking…….. 'What kind of weirdo kid likes to play outside when there's perfectly good video games on the inside of the house?"  But this kid got some Brooklyn in her genes, so --- she's a outdoor kind of kid.

When I was a kid, if someone on my block on East 28th Street in Sheepshead Bay made a complaint about kids playing outside and making too much noise…….that guy usually wound up with some sort of baseball or soccer ball right through their living room window.  Probably more than once.  Or twice.  And the playing continued without further interruption.  

The real question is…….

EVEN IF THERE IS A RULE THAT SAYS KIDS CAN'T PLAY OUTSIDE ---- CAN THE H.O.A. REALLY ENFORCE THAT RULE!

Let's talk about what the rules are regarding making rules.  In Hidden Harbor Estates v Norman which was decided by the 3rd DCA in 1975 --- the court spoke about whether a Board rule which prohibits alcoholic beverages in the clubhouse was reasonable and here is what the court said:

It appears to us that inherent in the condominium concept is the principle that to promote the health, happiness, and peace of mind of the majority of the unit owners since they are living in such close proximity and using facilities in common, each unit owner must give up a certain degree of freedom of choice which he might otherwise enjoy in separate, privately owned property.

Certainly, the association is not at liberty to adopt arbitrary or capricious rules bearing no relationship to the health, happiness and enjoyment of life of the various unit owners. On the contrary, we believe the test is reasonableness. If a rule is reasonable the association can adopt it; if it's not, it cannot.

The court found that a rule prohibiting alcohol in the clubhouse was reasonable.  In light of the Hidden Harbor case, no doubt the association would argue that kids playing on the streets in the community creates excess noise and therefore their rule promotes health, happiness and enjoyment of life.  But, it can certainly be argued the other way too --- it's harmful to a child's health, happiness and enjoyment of life to be prevented from playing outside.  That's why so many are growing up overweight and without the social skills necessary to communicate, unless it's through a computer screen or cell phone.  And by the way…….anyone who doesn't want to hear the noise of children playing is free to move into a 55 and over community.  If you're not 55 and just can't cope with the noise of a child playing then you're free to pitch a tent and move to Florida's Everglades.

For condominiums, there may be a little more wiggle room.  I grew up in an apartment building and there were rules that said no playing in the hallways.   That might have been reasonable….but my friends and I didn't comply with those rules too often either --------- especially in the winter.  And if an adult complained about my friends and I playing in the hallway and making too much noise ---- my dad backed me every time -- and told the neighbor that if they yell at me one more time --- my dad would join me and start playing in the hallway too.  As I got older, I stopped playing in the hallway and started playing in my apartment.  The drums that is.  Then the neighbors wished I played baseball in the hall again.

I don't think it would be easy to find a judge in South Florida to say that it's a reasonable rule to prevent children from playing outdoors in a 55 and over community.  But I want to know what our readers think.  Is such a rule reasonable?  Are there any crazy rules that were passed in your community?