Q: I am a shareholder in a small, white-glove Upper East Side co-op. The board recently refurbished the common area in the backyard and purchased outdoor furniture. New rules permit the children of shareholders who are 16 and older to sit in the yard during appropriate hours and enjoy the garden in a quiet manner. The younger children of shareholders are prohibited from ever setting foot in the yard, even under parental supervision. Irrespective of co-op rules, may the board treat residents differently this way?
A: Your co-op board’s new rules may seem cruel, or, at the very least, stodgy. Children like to spend time in backyards as much as adults do, if not more. But children tend to use outdoor space in a different — may I say, noisier — way than adults do. They are also more likely to fall and injure themselves, which is why children are often prohibited from using amenities like gyms, hot tubs, pools and rooftop decks.
“No building wants the responsibility or liability of having young children, or anyone for that matter, be injured,” said Lisa A. Smith, a real estate lawyer and partner in the Manhattan office of the law firm Smith, Gambrell & Russell.
Certainly, co-op rules cannot discriminate against any shareholder and must treat shareholders equally. But co-ops also have to protect the building. The building’s insurance policy might impose limitations on where small children can roam and play. Added to that, the board needs to weigh the needs of all the shareholders in making decisions. If any apartments abut the backyard, those residents may not appreciate suddenly living off a de facto playground — an arrangement they didn’t agree to when they bought their units.
If there are a lot of young families in the building, the board might consider carving out a safe and reasonable play space in a common area for the youngest residents, or, if possible, open the space to supervised children at specific hours. Finding a way to accommodate the children could benefit all the residents, because as anyone who has spent time with a child in a city apartment knows, giving them ample room to run around and get their energy out in a place other than the living room is good for everyone.
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