Discriminatory Restrictions in Governing Documents

In the context of housing and residential use, Section 12955 of the Government Code makes it unlawful to discriminate against individuals because of race, religion, sex, gender, national origin, familial status, or disability. Section 12955 additionally defines discrimination to include the existence of a restrictive covenant that makes housing opportunities unavailable to persons because of their race, religion, sex, gender, national origin, familial status, etc. (Gov. Code § 12955(l).)

Civil Code Section 4225 explicitly addresses discriminatory restrictions in the context of association governing documents. It prohibits the CC&Rs or other governing documents of an association from containing restrictive covenants that violate Section 12955. (Civ. Code § 4225(a).)

Duty to Delete Discriminatory Restrictions
If an unlawful restrictive covenant is contained within the provisions of an association’s governing documents (i.e., in its CC&Rs), the association’s board of directors has the affirmative obligation to amend the governing documents for the purpose of removing the unlawful restrictive covenant:

“(b) Notwithstanding any other provision of law or provision of the governing documents, the board, without approval of the members, shall amend any declaration or other governing document that includes a restrictive covenant prohibited by this section to delete the restrictive covenant, and shall restate the declaration or other governing document without the restrictive covenant but with no other change to the declaration or governing document.” (Civ. Code § 4225(b).)

Amending CC&Rs to Delete Discriminatory Restrictions – If the CC&Rs are amended to delete a discriminatory restriction, the amended and restated CC&Rs must be recorded in each county in which the association’s development is located. (Civ. Code § 4225(c).)

Amending Articles to Delete Discriminatory Restrictions – If the articles of incorporation are amended to delete a discriminatory restriction, the board must file a certificate of amendment with the Secretary of State pursuant to Section 7814 of the Corporations Code. (Civ. Code § 4225(c).)

Failure to Remove Discriminatory Restrictions
If a written request is delivered to an association requesting that a discriminatory restriction be deleted in accordance with Civil Code Section 4225(a), the association has thirty (30) days after receipt of the request to delete the discriminatory restriction. (Civ. Code § 4225(d).) If the association fails to remove the discriminatory restriction within that time period, the Department of Fair Employment and Housing, a city or a county in which the association is located, or any person may bring an action (i.e., a lawsuit) against the association for injunctive relief to compel the association to delete the discriminatory restriction. (Civ. Code § 4225(d).) The Court may award attorney’s fees to the prevailing party in such an action. (Civ. Code § 4225(d).)

Disclaimer of Unlawful Restrictive Covenants
Section 12956.1 of the Government Code additionally requires the following notice to be included on the cover page of an association’s CC&Rs as to the how discriminatory restrictions contained in the CC&Rs would be in violation of Section 12955:

 “If this document contains any restriction based on race, color, religion, sex, gender, gender identity, gender expression, sexual orientation, familial status, marital status, disability, genetic information, national origin, source of income as defined in subdivision (p) of Section 12955, or ancestry, that restriction violates state and federal fair housing laws and is void, and may be removed pursuant to Section 12956.2 of the Government Code. Lawful restrictions under state and federal law on the age of occupants in senior housing or housing for older persons shall not be construed as restrictions based on familial status.”

The notice must be printed in at least 14-point boldface type. (Gov. Code § 12956.1(b).)

Criminal Liability for Racially Restrictive Covenant – Any person who records a document for the express purpose of adding a racially restrictive covenant is guilty of a misdemeanor.  (Gov. Code § 12956.1(c).)