Category Archives: Property Use Restrictions

Sale of Accessory Dwelling Units (ADUs)

Sale of ADUs as Condominiums
Government Code Section 65852.2 allows for a local agency to adopt an ordinance allowing for the separate sale of accessory dwelling units (ADUs) and the primary dwelling on the property as condominiums. Such an ordinance must contain the following requirements (among others):

Created pursuant to the Davis Stirling Act. The condominiums must be created pursuant to the Davis-Stirling Common Interest Development Act, the body of Civil Code sections governing the creation and operation of homeowners associations. This requires the separate interests to have an interest in common area, a recorded declaration (CC&Rs), a recorded condominium plan, and a recorded final map or parcel map (if required under the Subdivision Map Act). (Gov. Code § 65852.2(a)(10)(A); Civ. Code § 4200.)
Created in Conformance with Subdivision Map Act & Local Ordinances. The condominiums must be created in conformance with all applicable objective requirements of the Subdivision Map Act and all objective requirements of a local subdivision ordinance. (Gov. Code § 65852.2(a)(10)(B).)
Safety Inspection & Certification. Before recordation of the condominium plan, a safety inspection of the ADU must be conducted and evidenced either through a certificate of occupancy or a certified housing quality standards report. (Gov. Code § 65852.2(a)(10)(C).)
Lienholder Consent. Neither a subdivision map nor a condominium plan may be recorded (or subsequently modified) without the consent of each lienholder of the property. Written evidence of each lienholder must be included on the condominium plan or attached to the condominium plan and recorded together with the condominium plan. (Gov. Code § 65852.2(a)(10)(D).)
Authorization of Existing HOA. If the property is within an existing planned development that has an existing homeowners association, the owner may not record a condominium plan without written approval by the association’s board of directors in a board meeting, and (if required by the association’s governing documents), approval by the association’s membership. (Gov. Code § 65852.2(a)(10)(G).)

Sale of ADUs as Low Income Housing
Qualified nonprofit corporations have the right to sell ADUs separately from the private residence on a property, subject to several requirements which include, among others, that the buyer of the ADU be a person or family of low or moderate income. (Gov. Code § 65852.26.)

Accessory Dwelling Units (ADUs)

Civil Code Section 4751 makes any provision in an HOA’s governing document that “effectively prohibits” or “unreasonably restricts” the construction or use of an accessory dwelling unit (an “ADU”) or a junior accessory dwelling (a “JADU”) on a lot that is zoned for single-family residential use is void and unenforceable under California law. (Civ. Code § 4751(a).)

Definitions of ADU and JADU

“Accessory Dwelling Unit” (ADU) means an attached or a detached residential dwelling unit which provides complete independent living facilities for one or more persons. It must include permanent provisions for living, sleeping, eating, cooking, and sanitation on the same parcel as the single-family dwelling is situated. An ADU also includes the following (Gov. Code § 65852.2(i)(4).):

- - An “efficiency unit,” as defined under the Section 17958.1 of the Health & Safety Code. Efficiency units must have (a) living area of at least 150 square feet, (b) a kitchen sink, cooking appliance and refrigeration facilities, and (c) a separate bathroom containing a water closet, lavatory and bathtub or shower.
  - A manufactured home, as defined in Section 18007 of the Health & Safety Code.

“Junior Accessory Dwelling Unit” (JADU) means a unit that is no more than 500 square feet in size and contained entirely within an existing single-family structure. A JADU may include separate sanitation facilities, or may share sanitation facilities with the existing structure. (Gov. Code § 65852.22(g)(1).)

Reasonable Restrictions by an HOA
Section 4751 does not apply to provisions of an HOA’s governing documents that impose “reasonable restrictions” on ADUs or JADUs. “Reasonable restrictions” means restrictions that do not unreasonably increase the cost to construct, effectively prohibit the construction of, or extinguish the ability to otherwise construct, an accessory dwelling unit or junior accessory dwelling unit consistent with the provisions of Government Code Sections 65852.2 or 65852.22. (Civ. Code § 4751(b).) The types of reasonable restrictions on ADUs and JADUs are set forth in Government Code Sections 65852.2 and 65852.22, respectively. They generally include the following:

Reasonable Restrictions on ADUs (Gov. Code § 65852.2)

The ADU may be rented separate from the primary residence.
The total area of floorspace of an ADU attached to the primary dwelling shall not exceed fifty percent (50%) of the existing primary dwelling area
The total floorspace of aa detached ADU shall not exceed 1,200 square feet.
Parking requirements for ADUs may be imposed but not exceed one parking space per unit or per bedroom, whichever is less.

Reasonable Restrictions on JADUs (Gov. Code § 65852.22)

Limit the number of JADUs to one per lot.
Require owner-occupancy in the single-family residence in which the JADU will be located. The owner may reside in either the remaining portion of the structure or the newly created JADU.
Require the JADU to be constructed within the walls of the proposed or existing single-family residence.
Require the JADU to include a separate entrance from the main entrance to the proposed or existing single-family residence.
Require the JADU to include an efficiency kitchen, which must include a sink, cooking facility with appliances, a food preparation counter and storage cabinets.

Religious Items on Doors

Civil Code Sections 1940.45 and 4706 restrict the ability for HOA governing documents to prohibit individuals within the association from displaying “religious items” on the entry doors and entry door frames of their respective dwellings.

“Religious Item” Defined
A “religious item” is defined as “an item displayed because of sincerely held religious beliefs.” (Civ. Code § 1940.45(c)(2).)

Permissible Restrictions
An association may adopt and enforce restrictions that prohibit the display or affixing of a religious item on any entry door or entry door frame to a dwelling that (Civ. Code §§ 4706, 1940.45(b)):

(1) Threatens the public health or safety.
(2) Hinders the opening or closing of any entry door.
(3) Violates any federal, state, or local law.
(4) Contains graphics, language or any display that is obscene or otherwise illegal.
(5) Individually or in combination with any other religious item displayed or affixed on any entry door or door frame that has a total size greater than 36 by 12 square inches, provided it does not exceed the size of the door.

Removal of Religious Items in Connection with Association Maintenance/Repairs
An association that is performing maintenance, repair or replacement of an entry door or door frame to a dwelling may require the member to remove a religious item displayed on the door or door frame during the time the association is performing the work. (Civ. Code § 4706(b).) If such temporary removal is required, the association must:

Provide individual notice to the member regarding the temporary removal of the religious item; and
Permit the member to again display or affix the religious item to the entry door or door frame after completion of the association’s work.

Hardsurface (Hardwood) Flooring Restrictions

Modern sets of CC&Rs for condominium developments often contain provisions that restrict the types of flooring materials may be installed within a unit and/or at specific locations within a unit. Those restrictions purport to protect neighboring owners from being subjected to nuisance noise transmissions that unreasonably interfere with the quiet use and enjoyment of their units. In situations where an owner installs hardsurface (i.e., hardwood) flooring without approval and in violation of the CC&Rs, the association may have the authority to sue the owner in order to compel the removal of the flooring, or to at least require that the flooring be modified in order to abate nuisance noise transmissions:

“… the directive to find a compromise in modifying the flooring, as well as the interim remedy of using throw rugs, reflected a balanced consideration of the circumstances of everyone involved, including the residents below who were adversely affected by defendant’s violation of the noise and nuisance restrictions.” (Ryland Mews HOA v. Munoz (2015) 234 Cal.App.4th 705, 713.)

Towing of Vehicles

The procedure through which an association may remove (tow) vehicles from its common area and/or exclusive use common area parking spaces is governed by the requirements set forth in California Vehicle Code (CVC) § 22658. Those requirements involve (1) the prior notice given to vehicle owners, (2) the written authorization required for tows, and (3) the mandatory reporting requirements to local traffic law enforcement and to the vehicle owner in certain circumstances. These requirements are discussed further below.

Circumstances for Towing of Vehicles
When a vehicle is improperly parked upon an association’s common areas, the association may have the vehicle towed under any of the following circumstances:

Where “there is displayed, in plain view at all entrances to the property, a sign not less than 17 inches by 22 inches in size, with lettering not less than one inch in height, prohibiting public parking and indicating that vehicles will be removed at the owner’s expense, and containing the telephone number of the local traffic law enforcement agency and the name and telephone number of each towing company that is a party to a written general towing authorization agreement with the owner or person in lawful possession of the property” (CVC § 22658(a)(1)); or
Where “the vehicle has been issued a notice of parking violation, and 96 hours have elapsed since the issuance of the notice” (CVC § 22658(a)(2)); or
Where “the vehicle is on private property and lacks an engine, transmission, wheels, tires, or other equipment necessary to operate safely on the highways, the owner or person in lawful possession of the private property has notified the local traffic law enforcement agency, and 24 hours have elapsed sicne that notification” (CVC § 22658(a)(3)); or
Where “the lot upon which the vehicle is parked is improved with a single family dwelling.” (CVC § 22658(a)(4)).

Authorization Given to Towing Vendor
An association’s towing vendor may not tow a vehicle without first having written authorization from the association. That authorization may be in the form of a general authorization or a specific authorization depending upon the circumstances giving rise to the tow:

General Towing Authorization
A general authorization may be given for the towing of vehicles in any of the following three (3) circumstances: (CVC § 22658(l)(1)(E).)

Vehicles parked in fire lanes; or
Vehicles unlawfully parked within fifteen feet (15’) of fire hydrants; or
Vehicles parked in a manner that interferes with ingress or egress to, from or within the community.

In any of these three (3) circumstances, the general authorization would authorize the towing vendor to patrol the parking areas within the community and, in the towing company’s discretion and without additional authorization from the association, tow the offending vehicle. Upon claiming his/her vehicle towed under any of the above three (3) circumstances, the vehicle owner must be provided without charge: (a) a copy of the association’s general authorization with the towing vendor, and (b) a photograph taken by the towing vendor at the time of the tow that clearly depicts the parking violation for which the vehicle was towed. (CVC § 22658(l)(2).)

Specific Towing Authorization
In situations where an association seeks to have a vehicle towed in circumstances that do not fall within a general authorization, a representative of the association (i.e., its managing agent) must provide specific authorization to the towing vendor for that particular tow. Additionally, at the time of the tow, the association’s representative must be present somewhere within the community, though he/she is not required to be physically present at the location of the tow. (CVC § 22658(l)(1)(A).)

That specific authorization given by the association’s representative to the towing vendor must include all of the following: (CVC § 22658(l)(1)(B).)

The make, model, VIN#, and license plate # of the vehicle to be towed; and
The name, signature, job title, residential or business address and working telephone number of the association’s representative who authorized the tow; and the grounds for towing the vehicle; and the time when the vehicle was first observed parked in the community; and the time that the authorization to tow the vehicle was given.

When the vehicle owner claims his/her vehicle, the owner must be provided without charge a copy of the specific authorization. In providing this information, the towing vendor is required to redact the information pertaining to the association’s representative who authorized the tow. (CVC § 22658(l)(1)(C).)

Reporting Requirements
California Vehicle Code Section 22658 also imposes certain reporting requirements on both the Association and its towing vendor in connection with the towing of a vehicle:

Towing Vendor Reporting Requirements
If the towing vendor knows or is able to obtain from the association “the name and address of the registered and legal owner of the vehicle,” the towing vendor is required to immediately provide the vehicle owner with written notice of the tow, the grounds for removal, and also indicate the place to which the vehicle has been towed. (CVC § 22658(b).) If the towing vendor is unable to give such notice (i.e., if the towing vendor “does not know and is not able to ascertain” the information regarding the vehicle owner), and the vehicle is not returned to the owner within one hundred and twenty (120) hours, the towing vendor must send a written report of the removal to the Department of Justice and also file a copy of the notice with the facility where the vehicle is being stored. (CVC § 226583(c).)

Association Reporting Requirements
When authorizing a specific tow, the association’s representative must telephone the local traffic law enforcement within one (1) hour after authorizing the tow. If doing so is “impractical” for any reason, then local traffic law enforcement must be notified by the “most expeditious means available.” (CVC § 22658(f).) If the vehicle owner asks the association to tell him/her the basis for the tow, the association must state the grounds for the tow. (CVC § 22658(f).)

Liability for Invalid Tows & Damaged Vehicles
California Vehicle Code Section 22658 provides that towing vendors are generally not responsible in any situation for determining whether a tow authorized by the association is valid. (CVC § 22658(f).)

The towing vendor, not the association, is liable for any damage caused to towed vehicles. However, if it can be shown that the damage was attributable to an “intentional or negligent act” of the association, the association can be made liable. (CVC § 22658(l)(1)(D).)

Interrupted Tows
The towing vendor is required, at the vehicle owner’s request, to immediately and unconditionally set down the vehicle that is hitched and/or ready for tow but that is not yet in transit (i.e., the vehicle is still within the boundaries of the association’s development). (CVC § 22658(g)(1)(B).) In such a case, the towing vendor is entitled to payment from the vehicle owner of up to fifty percent (50%) of the towing charge if the association’s representative requests such payment on the towing vendor’s behalf. (CVC § 22658(h).)

Occupancy Restrictions

Overcrowding within residential community associations may result in various problems and nuisance issues that adversely affect the quiet enjoyment of the association’s residents. Associations do have some authority to impose reasonable, non-discriminatory restrictions on the occupancy of condominium units:

“The authority of a condominium association necessarily includes the power to issue reasonable regulations governing an owner’s use of his unit in order to prevent activities which might prove annoying to the general residents…Therefore, a reasonable restriction upon the occupancy of individually owned units of a condominium project is not beyond the scope of authority of the owner’s association.” (Ritchey v. Villa Nueva Condo. Assn. (1978) 81 Cal.App.3d 688, 698-699.)

Discriminatory Age-Based Restrictions
Federal and state statutes prohibit residential restrictions that discriminate on basis of race, religion, natural original, sex, ancestry, familial status, or disability. With the exception of senior communities, occupancy restrictions may not be used to discriminate against families with children, nor may they be used to limit residency to persons over a certain age. (O’Connor v. Village Green Owners Assn. (1983) 33 Cal.3d 790.) However, the Department of Housing and Urban Development (HUD) has stated that:

“…in appropriate circumstances, owners and managers may develop and implement reasonable occupancy requirements based on factors such as the number and size of sleeping areas or bedrooms and the overall size of the dwelling unit. In this regard, it must be noted that, in connection with a complaint alleging discrimination on the basis of familial status, [HUD] will carefully examine any such nongovernmental restriction to determine whether it unreasonably operates to limit or exclude families with children.” (HUD – Occupancy Standards Statement of Policy.)

Occupancy Formulas
The California Health & Safety Code and the Federal Uniform Housing Code both contain provisions that restrict the number of persons residing within a unit by utilizing formulas based upon the square footage of bedroom sizes. Various cities and counties within California have issued their own occupancy standards/formulas. Additionally, the California Department of Fair Employment and Housing (DFEH) uses what is known as the “two plus one” formula, which permits two (2) people to occupy each bedroom, with one (1) additional person in the living spaces (i.e., five (5) people may reside in a two bedroom unit). The DFEH formula has not gained formal legal status at either the state or federal level.

Caregivers within Senior Communities

Civil Code Section 51.3 (and Section 51.11 for communities within Riverside County) provides senior communities located within California the authority to implement and enforce age-restrictions for their residents. (See “Senior Communities.”) Those restrictions must include a requirement that each unit be occupied by at least one “qualifying resident”—meaning a person 62 years of age or older, or 55 years of age or older depending on the category of the senior community. (Civ. Code §§ 51.3(b)(1), 51.11(b)(1).) However, Civil Code Sections 51.3 and 51.11 also allow for other categories of persons whom do not meet the standard of a “qualifying resident” to also reside in a unit with a qualifying resident. (Civ. Code §§ 51.3(c), 51.11(c).) One of those categories includes “permitted health care residents” (i.e., caregivers).

“Permitted Health Care Resident” Defined
A “permitted health care resident” is defined as a person hired to provide live-in, long term, or terminal health care to a qualifying resident, or a family member of the qualifying resident providing that care. (Civ. Code §§ 51.3(b)(7), 51.11(b)(7).) The care provided by a permitted health care resident must be “substantial in nature,” and also must provide either medical treatment or “assistance with necessary daily activities,” or both. (Civ. Code §§ 51.3(b)(7), 51.11(b)(7).) Notably, neither Section 51.3 nor 51.11 set forth any restrictions on the age of permitted health care residents.

Continuation of Occupancy in the Absence of Qualifying Resident
When a qualifying resident temporarily vacates a unit, the qualifying resident’s permitted health care resident has limited rights to continue his/her occupancy, residency or use of the unit if both of the following are applicable:

The qualifying resident’s absence was due to hospitalization or other necessary treatment, and the qualifying resident expects to return to the unit within ninety (90) days from the day the absence began; (Civ. Code §§ 51.3(b)(7)(A), 51.11(b)(7)(A)) and
The absent qualifying resident (or his/her agent) submits a written request to the association’s board of directors stating that the qualifying resident desires that the permitted health care resident be allowed to remain in order to be present in the unit when the qualifying resident returns. (Civ. Code §§ 51.3(b)(7)(B), 51.11(b)(7)(B).)

Discretionary Extension of Time
In addition to the foregoing, upon a written request from the qualifying resident (or his/her agent), the board has the discretion to allow a permitted health care resident to remain in the unit for any additional ninety (90) days from the day when the qualifying resident’s absence began, but only if it “appears that the [qualifying resident] will return within a period of time not to exceed an additional 90 days.” (Civ. Code §§ 51.3(b)(7), 51.11(b)(7).)

Compensation of Caregivers
The rights of a permitted health care resident to occupy the unit extends to periods of time when the permitted health care resident is providing care to a qualifying resident “for compensation.” Compensation does not solely include monetary payment, but may also include “provisions of lodging and food in exchange for care.” (Civ. Code § 51.3(j).)

Senior Communities

Senior communities (aka “active adult” communities) engage in a form of discrimination through the imposition of age restrictions for their communities. The legal authority for senior communities to do so is provided under both federal and state statutes.

Federal Statutes: FFHA & HOPA
The Federal Fair Housing Act prohibits discrimination in the sale, rental and financing of residential of dwellings based upon familial status. Its provisions generally bar restrictions in an association’s governing documents (i.e., its CC&Rs) that serve to exclude children from the association’s development. In 1988 Congress created an exemption to the provisions barring discrimination on the basis of familial status for those housing developments that qualified as housing for persons age 55 and older (senior communities). This exemption was then refined through the Housing for Older Persons Act of 1995 (HOPA). HOPA is administered through by Department of Housing and Urban Development (HUD).

Qualification Requirements
To qualify as a senior community, a housing development or homeowners association must satisfy the following requirements:

At least eighty percent (80%) of the occupied properties must have at least one occupant that is 55 years of age or older;
The association must publish and adhere to policies that demonstrate its intent to operate as a senior community for persons 55 years of age or older; and
The association must comply with age-verification procedures to ensure compliance with the age requirements.

Prior Failure to Comply with Age-Verification Requirements
If an association has consistently maintained the required 80% threshold but has previously failed to comply with HOPA’s age-verification requirements, that in itself will not disqualify the association from being afforded HOPA’s protections. (Balvage v. Ryderwood Improvement Services Assn. (9th Cir. 2011) 642 F.3d 765.)

California Statutes: Unruh & Civil Code § 51.3
California has provided protections against discrimination through the Unruh Civil Rights Act found at Civil Code Section 51. An exemption for senior citizen developments similar to that provided under HOPA is codified at Civil Code Section 51.3. Section 51.3 generally requires that an association’s CC&Rs set forth the limitations on age, where such limitations require that:

Each unit must be occupied by at least one (1) “senior citizen” or “qualifying resident,” and
Each other resident within a unit must be either a “qualified permanent resident,” a “permitted health care resident,” or another person whose occupancy is permitted under Civil Code Section 51.4(b). (Civ. Code § 51.3(c).)

“Senior Citizen” and “Qualifying Resident” Defined
Civil Code Section 51.3 defines a “qualifying resident” or “senior citizen” as a person 62 years of age or older, or 55 years of age or older depending on the category of the senior community. (Civ. Code § 51.3(b)(1).)

“Qualified Permanent Resident” Defined
Civil Code Section 51.3 defines a “qualified permanent resident” as a person who meets both of the following requirements:

Was residing with the qualifying resident prior to the qualifying resident’s death, hospitalization or other prolonged absence, or prior to the dissolution of marriage with the qualifying resident; (Civ. Code § 51.3(b)(2)(A)) and
Was 45 years of age or older, or was a spouse, cohabitant or person providing primary physical or economic support to the qualifying resident. (Civ. Code § 51.4(b)(2)(B).)

A qualified permanent resident also includes a disabled person who is a child or grandchild of the qualifying resident or a qualified permanent resident who needs to live with the qualifying resident or qualified permanent resident because of the disabled person’s disability. (Civ. Code § 51.3(b)(3).)

“Permitted Health Care Resident” Defined
Civil Code Section 51.3 defines a “permitted health care resident” as a person hired to provide “substantial” live-in, long term, or terminal health care to a qualifying resident (i.e., a caregiver), or a family member of the qualifying resident providing that care. (Civ. Code § 51.3(b)(7).) Section 51.3 also provides some limited rights for permitted health care residents to continue residing in the unit in the absence of the qualifying resident. (Civ. Code § 51.3(b)(7); See also “Caregivers within Senior Communities.”)

Senior Communities within Riverside County: Civil Code § 51.11
The provisions of Civil Code Section 51.3 are essentially mirrored in Civil Code Section 51.11. Section 51.11 is applicable only to senior communities located within Riverside County. (Civ. Code § 51.11(j).)

Enforcement
Once a senior community has been established, its age restrictions are legally enforceable. (Huntington Landmark v. Ross (1989) 213 Cal.App.3d 1012.)

Alcohol or Drug Abuse Recovery or Treatment Facilities

Similar to “family day care homes” and “residential care facilities,” restrictions in an association’s governing documents (i.e., in its CC&Rs) that prohibit the non-residential uses of properties may not be used to prohibit a property from operating as a “alcoholism or drug abuse recovery or treatment facility” (i.e., a sober living home) that services six (6) or fewer persons:

“For the purposes of any contract, deed, or covenant for the transfer of real property executed on or after January 1, 1979, an alcoholism or drug abuse recovery or treatment facility which serves six or fewer persons shall be considered a residential use of property and a use of property by a single family, notwithstanding any disclaimers to the contrary.” (H&S Code § 11834.25.)

Residential Care Facilities

Similar to “family day care homes” and “alcohol or drug abuse recovery or treatment facilities” (i.e., sober living homes), restrictions in an association’s governing documents (i.e,. in its CC&Rs) that prohibit the non-residential uses of properties may not be used to prohibit a “residential care facility” that services six (6) or fewer persons:

“For the purposes of any contract, deed, or covenant for the transfer of real property executed on or after January 1, 1979, a residential facility which serves six or fewer persons shall be considered a residential use of property and a use of property by a single family, notwithstanding any disclaimers to the contrary.” (H&S Code § 1566.5.)

“Residential Care Facility” Defined
A residential care facility is defined under the California Community Care Facilities Act as:

“…any family home, group care facility, or similar facility” determined by the Director of Social Services that provides “for 24-hour nonmedical care of persons in need of personal services, supervision, or assistance essential for sustaining the activities of daily living or for the protection of the individual.” (H&S Code § 1502(a)(1).)

The operation of such a facility is considered to be a “residential use of a property and a use of a property by a single family.” (H&S Code § 1566.5)

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