Category Archives: Topic Index

Exclusive Use Common Area Maintenance

Exclusive use common area is a portion of common area designated by the CC&Rs for the exclusive use of one or more, but fewer than all, of the owners within the association’s development. (Civ. Code § 4145(a).) Civil Code Section 4145(b) lists the following components as exclusive use common area, subject to any contrary provisions in an association’s CC&Rs:

“…shutters, awnings, window boxes, doorsteps, stoops, porches, balconies, patios, exterior doors, doorframes, and hardware incident thereto, screens and windows or other fixtures designed to serve a single separate interest, but located outside the boundaries of the separate interest, are exclusive use common area allocated exclusively to that separate interest.” (Civ. Code § 4145(b).)

Modifying Provisions Contained in CC&Rs
The classification of the above components as exclusive use common area assumes that there are no contrary provisions in an association’s CC&Rs. If such contrary provisions exist, the CC&R provisions control. (Civ. Code § 4145(b).) Modern CC&Rs and condominium plans for condominium projects often contain provisions which clearly define what areas/components are exclusive use common area, as well as the owners maintenance obligations for those areas.

Maintained by Owner
The provisions of an association’s CC&Rs typically outline the scope of an owner’s maintenance responsibilities for the exclusive use common area appurtenant to his/her unit. In the event that such provisions are absent or ambiguous, Civil Code Section 4775 makes the owner responsible for maintaining the exclusive use common area.

“(a) Unless otherwise provided in the declaration of a common interest development…the owner of each separate interest is responsible for maintaining that separate interest and any exclusive use common area appurtenant to the separate interest.” (Civ. Code § 4775(a).)

“Designed to Serve a Single Separate Interest”
Civil Code Section 4145 states in pertinent part that “fixtures designed to serve a single separate interest, but located outside the boundaries of the separate interest, are exclusive use common area allocated exclusively to that separate interest.” (Civ. Code § 4145(b). (Italics added).) However, in the event that a particular fixture/component is not explicitly defined as exclusive use common area within the CC&Rs or condominium plan, the association may not solely rely on whether it believes that fixture/component “is designed to serve a single separate interest” when making the determination that the fixture/component is in fact exclusive use common area to be maintained by the owner. (See Dover Village Association v. Jennison (2010) 191 Cal.App.4th 123.)

Legislation Affecting Repair & Replacement of Exclusive Use Common Area
The maintenance responsibilities under Civil Code Section 4775 are somewhat ambiguous with regard to exclusive use common area; Section 4775 fails to state whether an owner is additionally responsible for the “repair and replacement” of exclusive use common area, not simply “maintenance.” HOA industry practice has held that it is the responsibility of the association to repair or replace exclusive use common area. Legislation that was signed into law on September 18, 2014 will resolve the ambiguity by codifying industry practice. Effective January 1, 2017, that legislation, AB 968 (Gordon), will amend Section 4775 to state that, unless otherwise provided for in the CC&Rs, the owner is required to maintain exclusive use common area, and the association is responsible to repair and replace exclusive use common area.

Exclusive Use Common Area Damage Caused by a Member
Where damage to exclusive use common area is caused by the acts of the owner, the owner’s guest or tenant, any repair expenses incurred by the association may be recoverable through levying a reimbursement assessment against the owner. (See “Reimbursement & Compliance Assessments.”)

Common Area Maintenance

Everything that is located within an association’s development except for the “separate interests” (the units or lots owned by the association’s individual members) constitutes common area. (Civ. Code § 4095(a).) One of the primary responsibilities of an association is to maintain, repair and replace the common area. Those responsibilities are typically outlined within the provisions of an association’s declaration (CC&Rs). In the event that such provisions are absent or ambiguous, Civil Code Section 4775 establishes an association’s default common area maintenance responsibilities:

“(a) Unless otherwise provided in the declaration of a common interest development, the association is responsible for repairing, replacing, or maintaining the common area, other than exclusive use common area, and the owner of each separate interest is responsible for maintaining that separate interest and any exclusive use common area appurtenant to the separate interest.” (Civ. Code § 4775(a).)

Board Duty to Inspect Common Area
Upholding an association’s common area maintenance responsibilities places a duty on the board of directors to inspect the common areas at least once every three (3) years and to prepare a reserve study. (Civ. Code § 5550; See also “Reserve Study.”) The reserve study is used to determine the amount of reserve funds that should be set aside for the maintenance and repair of major components which the association is obligated to maintain, and which have a remaining useful life of less than thirty (30) years. (Civ. Code § 5550; See also “Reserve Study.”)

Methods of Maintenance & Judicial Deference
In the case of Lamden v. La Jolla Shores Clubdominium HOA (1999) 21 Cal.4th 249, the California Supreme Court adopted a rule known as the “Rule of Judicial Deference.” The Rule of Judicial Deference generally requires courts to defer to maintenance decisions made by HOA boards even if a reasonable person would have acted differently in the same situation:

“Where a duly constituted community association board, upon reasonable investigation, in good faith and with regard for the best interests of the community association and its members, exercises discretion within the scope of its authority under relevant statutes, covenants and restrictions to select among means for discharging an obligation to maintain and repair a development’s common areas, courts should defer to the board’s authority and presumed expertise. Thus, we adopt today for California courts a rule of judicial deference to community association board decisionmaking that applies, regardless of an association’s corporate status, when owners in common interest developments seek to litigate ordinary maintenance decisions entrusted to the discretion of their associations’ boards of directors.” (Lamden, at 253.)

The justification for such deference is premised upon “the relative competence, over that of courts, possessed by owners and directors of common interest developments to make the detailed and peculiar economic decisions necessary in the maintenance of those developments.” (Lamden, at 270-271.) The Rule of Judicial Deference is intended to “minimiz[e] the likelihood of unproductive litigation” over the discretionary maintenance decisions made by the board, and to help “foster stability, certainty and predictability in the governance and management of common interest developments.” (Lamden, at 271.)

Deference May Not Extend to a Failure to Investigate & Address Maintenance Problems
While the board is granted deference by the courts in determining how the common areas are to be maintained, an association may be held liable for its failure to investigate maintenance problems and to take reasonable action:

“The judicial deference doctrine does not shield an association from liability for ignoring problems; instead it protects the Association’s good faith decisions to maintain and repair common areas….the essence of an association’s duty to maintain and repair is a duty to act based on reasoned decision making.” (Affan v. Portofino Cove HOA (2010) 189 Cal.App.4th 930, 942 (Italics original).)

Deference May Not Extend to Board’s Interpretation of Association Maintenance Responsibilities
Judicial deference may not extend to the ways in which the board interprets the scope of the association’s maintenance responsibilities under its CC&Rs. In Dover Village Association v. Jennison (2010) 191 Cal.App.4th 123, the association argued that the determination made by its board as to whether a portion of sewer line was exclusive use common area to be maintained by the unit owner (and thus, not common area to be maintained by the association) was a decision committed to the board’s discretion and thus entitled to judicial deference. The court disagreed with the association, noting that “[t]here is an obvious difference between a legal issue over who precisely has the responsibility for a sewer line and how a board should go about making a repair that is clearly within its responsibility. But we know of no provision in the Davis-Stirling Act or the CC&Rs that makes the Association or its board the ultimate judge of legal issues affecting the development.” (Dover, at 130.)

Common Area Damaged Caused by a Member
Where damage to common area is caused by the acts of a member, the member’s guest or tenant, any repair expenses incurred by the association may be recoverable through levying a reimbursement assessment against the member. (See “Reimbursement & Compliance Assessments.”)

Standard of Maintenance Controlled by CC&Rs
The standard of maintenance may be controlled by language within an association’s CC&Rs (e.g., the common areas must be maintained in “a first class condition”). An association’s failure to perform maintenance in accordance with those standards may constitute a breach of contract by the association. (See Sands v. Walnut Gardens Condominium Ass’n Inc. (2019) 35 Cal.App.5th 174.)

Maintenance Responsibilities (Generally)

As discussed below, the maintenance responsibilities of an association as compared to those of its individual members (the owners of property within the association) depend primarily on whether the item or component to be maintained is classified as common area, exclusive use common area, or is included within a member’s “separate interest” (the real property owned exclusively by the member).

Common Area Maintenance
One of the primary responsibilities of an association is to maintain, repair and replace the common area improvements located throughout the association’s development. Those responsibilities are typically outlined within the provisions of an association’s declaration (CC&Rs). In the event that such provisions are absent or ambiguous, Civil Code Section 4775 establishes an association’s default maintenance, repair, and replacement responsibilities:

“…unless otherwise provided in the declaration of a common interest development, the association is responsible for repairing, replacing, and maintaining the common area.” (Civ. Code § 4775(a)(1).)

Upholding an association’s common area maintenance, repair, and replacement responsibilities places duties on the association’s board of directors to:

Inspect the common areas at least once every three (3) years and to prepare a reserve study in order to determine the amount of reserve funds that should be set aside for the maintenance and repair of major components which the association is obligated to maintain and which have a remaining useful life of less than thirty (30) years. (Civ. Code § 5550; See also “Reserve Study.”)
Investigate maintenance problems and take action to address them. While the board is granted deference by the courts in determining how the common areas are to be maintained, an association may be held liable for its failure to investigate maintenance problems and to take reasonable action:

**For more information, see “Common Area Maintenance.”

Exclusive Use Common Area Maintenance
A subset of common area is “exclusive use common area” (aka “restricted common area”). Exclusive use common area is a portion of common area designated by the CC&Rs for the exclusive use of one or more, but fewer than all, of the owners within the development. (Civ. Code § 4145(a).) Exclusive use common areas are found primarily within condominium projects (i.e., patios, balconies, porches, window boxes, etc.). The maintenance, repair, and replacement responsibilities for exclusive use common areas are typically controlled by the provisions of an association’s CC&Rs and/or condominium plan. Where those provisions are absent or ambiguous, the provisions of Civil Code Section 4775 generally allocate the maintenance responsibilities for exclusive use common areas to the individual unit owners, while the association is responsible for repairing or replacing the exclusive use common area.

**For more information, see “Exclusive Use Common Area Maintenance.”

Separate Interest Maintenance
The real property within an association’s development that is owned exclusively by a member is referred to as the member’s “separate interest.” The types of separate interests within a particular development are based upon the form of the development itself. For example, in a Planned Unit Development (or “PUD”), a member’s separate interest includes an individually owned lot (or parcel), as well as the residential structures and other improvements located on the lot. (Civ. Code § 4185(a)(3).) In a condominium project, a member’s separate interest is a “unit” that consists of a block of airspace bounded by the interior, unfinished surfaces of the unit’s perimeter walls, floors and ceilings. (Civ. Code §§ 4185(a)(2), 4125; See also “Airspace Condominium Units.”) Whether any particular component or improvement is included within a member’s separate interest may also be controlled by the provisions of the association’s CC&Rs and/or condominium plan.

Unless otherwise provided in the CC&Rs, members bear the maintenance responsibilities for their respective separate interests. (Civ. Code § 4775(a)(2). )

Duty to Enforce

An association has the authority to enforce violations of the association’s governing documents. (Civ. Code § 5975; See also “Standing to Litigate.”) Enforcement of the restrictions contained in the governing documents (i.e., in the CC&Rs) is considered the responsibility of an association. (Duffey v. Superior Court (1992) 3 Cal.App.4th 425, 431.) An association may be held liable for its failure to enforce those restrictions. (Posey v. Leavitt (1999) 229 Cal.App.3d 1236; See also “Failure to Enforce.”)

Discretion to Litigate
An association’s duty to enforce the governing documents does not necessarily require the board to litigate every violation of the association’s governing documents. A board has discretion when deciding whether to commence litigation; that discretion allows for the board to weigh various factors such as the severity of the violation at issue, the anticipated costs of litigation, and the likely outcome of litigation when deciding whether or not to litigate a particular violation. (Beehan v. Lido Isle Community Assn. (1977) 70 Cal.App.3d 858.)

Suspension of Privileges

The privileges that an association’s members have to use and enjoy the association’s common area facilities (i.e., pool, clubhouse, recreational facilities, etc.) are not absolute; they are subject to reasonable rules and regulations (“operating rules”) adopted by the association that govern the use of those areas. (Civ. Code § 4355(a); Liebler v. Point Loma Tennis Club (1995) 40 Cal.App.4th 1600).) If an association adopts and publishes a disciplinary policy (i.e., a “fine policy“) for violations of the association’s governing documents, and that policy also includes the suspension of a member’s privileges as a potential disciplinary measure, the association typically has the authority to suspend a member’s privileges while the violation remains uncorrected. Suspending a member’s privileges while the member is delinquent in assessments may also be incorporated into the association’s collection policy. However, the authority for an association to suspend privileges for assessment delinquencies or other governing document violations is not explicitly provided for in the Davis-Stirling Act and will therefore be dictated by the provisions of the association’s governing documents.

Disallowed Suspensions

Access to Separate Interest – An association may not deny a member physical access to the member’s separate interest (to the member’s unit or lot), either by restricting access through the common area to the separate interest, or by restricting access solely to the separate interest. (Civ. Code § 4510; See also “Rights of Access to Separate Interest.”)
Utility Services – The California Supreme Court has analogized associations to “landlords” in certain respects. (See Frances T. v. Village Green Owners Assn. (1986) 42 Cal.3d 490, 499.) Landlords may not “willfully cause, directly or indirectly, the interruption or termination of any utility service furnished the tenant, including, but not limited to, water, heat, light, electricity, gas, telephone, elevator, or refrigeration, whether or not the utility service is under the control of the landlord.” (Civ. Code § 789.3(a).) An association may therefore be prohibited from suspending or “shutting off” a member’s utility services for a violation, though no case law or statutes explicitly address this issue.
Attendance of Board Meetings – Civil Code Section 4925 grants any member the right to attend board meetings (except executive session meetings), and to address the board during open forum. (Civ. Code § 4925; See also “Board Meeting Attendance Rights” and “Open Forum.”)
Voting Rights – Due to the language of Civil Code Section 5105 (regarding the election rules that an association is legally required to adopt), associations are not able to deny a ballot to a member “for any reason other than not being a member at the time when ballots are distributed.” (Civ. Code § 5105(g)(1); See also “Suspension of Voting Rights.”)

Procedural Requirements
Civil Code Section 5855 contains procedural requirements that must be satisfied before a disciplinary measure imposed upon a member becomes effective. Those requirements include:

Notice and Meeting (Hearing) – When the board intends to impose discipline in the form of a fine, the board must provide the member with individual notice of the meeting (hearing) where the board is to consider imposing discipline at least ten (10) days prior to the meeting. (Civ. Code § 5855(a).) However, when the discipline will involve suspension of the member’s privileges, Corporations Code Section 7341 requires at least fifteen (15) days advance notice of the meeting. (Corp. Code § 7341(c)(2).) The notice must contain, “at a minimum, the date, time and place of the meeting, the nature of the alleged violation for which a member may be disciplined…and a statement that the member has a right to attend and may address the board at the meeting.” (Civ. Code § 5855(b).) The board must meet with the member in executive session if requested by the member. (Civ. Code § 5855(b).)
Notice of Decision – If the board imposes discipline, the board must, within fifteen (15) days following the action, “provide the member with a written notification of the decision, by either personal delivery or individual delivery pursuant to Section 4040.” (Civ. Code § 5855(c).)

For more information on these procedural requirements, see “Notice & Hearing Requirements.”

Fine Policy & Fine Schedule

There is no legal requirement for an association to impose monetary penalties (fines) on members for violations of the association’s governing documents, though such requirements may be contained within the provisions of an association’s governing documents. If an association adopts a policy for imposing fines, Civil Code Section 5850 requires the association to adopt a “schedule” of fines that may be imposed for violations, and to distribute the fine schedule to the membership as part of the association’s annual policy statement. (Civ. Code §§ 5310(a)(8), 5850(a).)

Fines Restricted to Amounts Stated in Fine Schedule
Any fine that is imposed on a member for a violation of the governing documents may not exceed the amount of the applicable fine stated in the fine schedule that is in effect at the time of the violation. (Civ. Code § 5850(c).)

Amending the Fine Policy & Fine Schedule
The fine policy and fine schedule of an association constitutes an “operating rule” within the meaning of Civil Code Section 4355. (Civ. Code § 4355(a)(3).) Accordingly, a change to the fine policy or fine schedule must be performed in accordance with the rule change procedure mandated by Civil Code Section 4360. In sum, that procedure requires 28 days advance notice of the proposed rule change, a decision to make the change at a board meeting, and notice to the membership within fifteen (15) days after the decision has been made. (See “Adopting & Amending Operating Rules.”)

Relocation Costs

Relocation Costs Borne by Homeowner
The scope of items which an association is responsible to maintain and repair can be significant. This is especially true in condominium projects; the structural elements of the residential buildings housing the condominium units are often classified as common area that is maintained and repaired by the association. (See “Common Area Maintenance” and “Airspace Condominium Units.”) Undertaking such maintenance and repairs may require owners and occupants within the association’s development to temporarily vacate their units and, as a result, incur hotel expenses and other relocation costs while the repairs are being performed. In these instances, Civil Code Section 4775 states that relocation costs are to be borne by the owners:

“The costs of temporary relocation during the repair and maintenance of the areas within the responsibility of the association shall be borne by the owner of the separate interest affected.” (Civ. Code § 4775(c).)

Termite Treatment
When an association’s maintenance or repair efforts include the treatment of “wood-destroying pests or organisms” (i.e., termites), the occupants which are required to vacate their units during the treatment period are responsible to bear their respective relocation costs, and the association is additionally required to provide advance notice to the owners and the occupants of that fact. (Civ. Code § 4785(b); See also “Termites & Wood-Destroying Pests.”)

Notice & Hearing Requirements

Civil Code section 5855 sets forth procedural requirements that must be satisfied when an association’s board of directors imposes discipline (i.e., imposes a fine or suspends privileges) on a member for a violation of the association’s governing documents, or imposes a reimbursement assessment against a member for repairing damage caused to the common area as a result of the member, the member’s guest or tenant. Those procedural requirements are outlined below and may vary depending upon the terms of the association’s governing documents.

Notice of Violation & Hearing
At least ten (10) days prior to the meeting (the “hearing”) at which the board will decide to impose discipline, the board must notify the member in writing, by either personal delivery or individual delivery, pursuant to Civil Code section 4040. (Civ. Code § 5855(a); See also “Document & Notice Delivery Methods.”) If the disciplinary measure will involve suspension of the member’s membership privileges, the notice must be provided at least fifteen (15) days in advance of the hearing. (Corp. Code § 7341(c).)

Contents of Notice – At a minimum, the notification must include:

The date, time and place of the hearing;
The nature of the alleged violation for which the member may be disciplined or the nature of the damage to the common area for which a reimbursement assessment may be imposed; and
A statement that the member has a right to attend and may address the board at the hearing. (Civ. Code § 5855(b).)

Hearing Where Board Decides to Impose Discipline
The board may conduct the hearing in executive session if it so desires. (Civ. Code § 4935(a).) However, if the member requests for the hearing to be conducted in executive session, the board must honor the member’s request, and also allow for the member to attend the executive session hearing. (Civ. Code §§ 4935(b); 5855(b).) It is common practice for disciplinary hearings to be conducted in executive session even in the absence of a member’s request for the same.

Decision Must be Based Upon Findings – The decision to impose discipline should be based upon findings made by the board regarding the alleged violation for which discipline is being imposed. (Ironwood Owners Assn. IX v. Solomon (1986) 178 Cal. App. 3d 766.) Those findings are necessary to demonstrate that the board’s decision was made in good faith, was reasonable and not arbitrary or capricious. (Id.)

Restrictions on Board’s Ability to Impose Discipline
The board may not impose discipline on the member in either of the following circumstances:

Where the member “cures the violation” prior to the hearing; or
If curing the violation would take longer than the time between the notice of hearing and the hearing date, where the member provides “financial commitment to cure the violation.” (Civ. Code § 5855(c).)

Agreement Reached at Hearing
If the board and the member come to an agreement as a result of the hearing, the board is required to draft a written resolution as to that agreement. That written resolution, when signed by the board and the member, is binding and judicially enforceable. (Civ. Code § 5855(e).)

No Agreement Reached; Member Opportunity to Request IDR – If no agreement between the board and the member is reached as a result of the hearing, the member has the opportunity to request internal dispute resolution (IDR) with the association pursuant to Civil Code section 5910. (Civ. Code § 5855(d).)

Notice of Decision
If the board imposes discipline or a reimbursement assessment, the board is required to, within fourteen (14) days following the action, provide the member with written notification of the board’s decision by either personal delivery or individual delivery pursuant to Civil Code section 4040. (Civ. Code § 5855(f); See also “Document & Notice Delivery Methods.”)

Fines (Monetary Penalties)

Unless otherwise stated in an association’s governing documents, an association may adopt a “policy imposing any monetary penalty, including any fee, on any association member for a violation of the governing documents, including any monetary penalty relating the activities of a guest or a tenant of a member.” (Civ. Code 5850(a).) These “monetary penalties” are commonly known and referred to as “fines.” Fines are used in order to deter violations of the governing documents, as well as to compel compliance from a member, guest, or tenant who is in violation.

Authority to Impose Fines
The language of Section 5850 may not “be construed to create, expand, or reduce the authority of the board to impose monetary penalties on a member for a violation of the governing documents.” (Civ. Code § 5865.) However, the California Court of Appeal has indicated that the authority to impose fines need not be explicitly provided for in an association’s CC&Rs in order for the board to adopt a fine policy and utilize fines in its enforcement efforts. (Liebler v. Point Loma Tennis Club (1995) 40 Cal.App.4th 1600, 1613-1614.)

Distinct from Reimbursement Assessments
“Reimbursement assessments” (aka “compliance assessments”) refer to special assessments levied against an individual member to reimburse the association for its costs incurred in repairing damage to the common area caused by the member, his guest or tenant. (See “Reimbursement & Compliance Assessments.”) By contrast, fines are imposed in order to deter violations and compel compliance; they are not necessarily tied to any expenses incurred by the association as a result of a violation.

Fine Policy & Fine Schedule
The imposition of any fine must be in accordance with the association’s published fine policy and fine schedule that is adopted by the board and distributed to each member as part of the association’s annual policy statement. (Civ. Code § 5850(c); See also “Fine Policy & Fine Schedule.”)

Procedural Requirements
Civil Code Section 5855 contains procedural requirements that must be satisfied before a fine imposed upon a member becomes effective. Those requirements include:

Notice and Meeting (Hearing) – The board must provide the member with individual notice of the meeting (hearing) where the board is to consider imposing the fine at least ten (10) days prior to the meeting. (Civ. Code § 5855(a).) The notice must contain, “at a minimum, the date, time and place of the meeting, the nature of the alleged violation for which a member may be disciplined…and a statement that the member has a right to attend and may address the board at the meeting.” (Civ. Code § 5855(b).) The board must meet with the member in executive session if requested by the member. (Civ. Code § 5855(b).)
Notice of Decision – If the board imposes the fine, the board must, within fifteen (15) days following the action, “provide the member with a written notification of the decision, by either personal delivery or individual delivery pursuant to Section 4040.” (Civ. Code § 5855(c).)

For more information on these procedural requirements, see “Notice & Hearing Requirements.”

No Liens Allowed for Fines
When a member fails to remit payment of assessments owed to the association in a timely fashion, the association may record an assessment lien against the member’s property to act as security for the payment of the member’s assessment debt. (Civ. Code § 5675(a); See also “Notice of Delinquent Assessment (Assessment Lien).”) However, a “monetary penalty” (i.e., a fine) “imposed by the association as a disciplinary measure for failure of a member to comply with the governing documents…may not be characterized nor treated in the governing documents as an assessment that may become a lien against the member’s separate interest enforceable by the sale of the interest” through nonjudicial foreclosure. (Civ. Code § 5725(b).)

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).)

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