Many sets of association CC&Rs contain provisions that prohibit the commercial use of homes within the association’s development or any uses other than for a “single-family” dwelling. The California Legislature has limited the extent to which such provisions may used by a HOA to prohibit an owner or a tenant from operating his residence as a “family day care home”:
“…It is the intent of the Legislature that family day care homes for children should be situated in normal residential surroundings so as to give children the home environment which is conducive to healthy and safe development. It is the public policy of this state to provide children in a family day care home the same home environment as provided in a traditional home setting. The Legislature declares this policy to be of statewide concern with the purpose of occupying the field to the exclusion of municipal zoning, building and fire codes and regulations governing the use or occupancy of family day care homes for children, except as specifically provided for in this chapter, and to prohibit any restrictions relating to the use of single-family residences for family day care homes for children except as provided by this chapter.” (H&S Code § 1597.40(a).)
The Legislature has declared family day care homes to be immune from restrictions relating to the use of homes for single-family purposes. (H&S Code § 1597.40(a).) The Legislature has also rendered void any restriction contained within an association’s governing documents that “restricts or prohibits directly, or indirectly limits, the acquisition, use, or occupancy of [a] property for a family day care home.” (H&S Code § 1957.40(c).)
Similar protections exist for the operation of “residential care facilities” and “alcohol or drug abuse recovery or treatment facilities” (i.e., sober living homes).
“Family Day Care Home” Defined
A “family day care home” is defined under Health & Safety Code Section 1596.78(a) as a home that:
- Regularly provides care, protection and supervision for fourteen (14) or fewer children;
- In the provider’s own home;
- For periods of less than twenty-four (24) hours per day;
- While the parents or guardians are away; and
- Is either a “large family day care home” or a “small family day care home.”
Whether a family day care home is either a “large” or “small” family day care home is dependent upon the amount of children in the home that are being provided care, inclusive of those children under the age of 10 who reside at the home. (H&S Code § 1596.78(b)-(c).)
Licensing, Insurance & Operational Requirements
Licensing Requirements – the operator of a family day care home may be required to obtain proper licensing. The licensing requirements vary depending upon whether the family day care home is a “large” family day care home or a “small” family day care home. (H&S Code §§ 1597.44-46; 1597.4645.)
Insurance Requirements – the operator of a family day care home must maintain (1) liability insurance in the amount of at least $100,000 per occurrence and $300,000 aggregate, or a bond in the aggregate amount of $300,000; or (2) affidavits signed by each parent with a child enrolled in the family day care home that states that the parent knows that the day care home does not carry insurance or a bond. If there is insurance or a bond, a HOA may require that it be named as an additional insured, provided that the HOA pays any additional premium assessed for this coverage. (H&S Code §1597.531(b).)
Operational Requirements – the operator of a family day care home must comply with all regulations and operating procedures imposed on family day care homes by local and state laws. (See California’s “Manual of Policies and Procedures” for family day care homes.)
Family Day Care Homes within Age-Restricted (Senior) Developments
The provisions of the Health & Safety Code relating to family day care homes do not explicitly address whether they also apply to age-restricted (senior) developments.
Related Links
SB 234 Signed! Keeping the Kids Close to Home Act
-Published on HOA Lawyer Blog (October 2019)
Renter Rights
Membership in the Association
Association membership status is coupled with having an ownership interest in a lot or condominium within the association’s development. (Civ. Code § 4160.) The majority of the rights granted to members under the association’s governing documents or the Davis-Stirling Act therefore do not extend to renters, nor may they be validly transferred to renters. The following table illustrates what membership rights may be transferred from an owner to a renter; information in the table is discussed further below.
| Right | Transferrable to Renter |
| Attend Board Meetings | No |
| Attend Membership Meetings | No |
| Dispute Resolution (IDR & ADR) | No |
| Have Pets | Possible |
| Inspect Association Records | Possible |
| Serve on the Board | Possible |
| Standing to Sue Association | No |
| Use of Common Area Amenities | Yes (typically mandatory) |
| Vote | No |
Rights Transferred to Renters
- Use of Common Area Amenities – When owners lease their units to renters, they transfer their rights of use and enjoyment of the association’s common area amenities to their renters. Most sets of association governing documents contain provisions that require an owner to surrender those rights for so long as his property is being leased out to a renter. California courts have upheld the validity of such restrictions and the authority that associations have to enforce them. (Liebler v. Point Loma Tennis Club (1995) 40 Cal.App. 4th 1600, 1610.)
- Inspect Association Records (*Possible) – Various association records must be made available for inspection by members within certain time periods. (Civ. Code § 5205; See also “Member Record Inspection Rights.”) Renters do not have the right to request records; however, if a member issues a valid request to inspect and copy specified association records, the member may also “designate another person” (i.e., a renter) “to inspect and copy the specified records on the member’s behalf.” (Civ. Code § 5205(b).)
- Serve on the Board (*Possible) – Most sets of association governing documents allow only members of the association to serve on its board of directors. (See “Director Qualifications.”) Where such restrictions are absent from the governing documents, there may be circumstances where a renter may be eligible to serve as a director and ultimately be elected to the board.
- Have Pets (*Possible) – Civil Code Section 4715 grants “owners” within an association the right to keep and maintain at least one (1) pet within their respective units. (See “Pet Restrictions.”) However, Section 4715 makes no mention of whether that right also extends to renters. The degree to which an association may legally prohibit renters’ pets is ambiguous.
Rights Which Are Not Transferred
- Attend Board Meetings – Unless otherwise provided in an association’s governing documents, only members have the legal right to attend board meetings, as well as the right to address the board during open forum. (Civ. Code § 4925.)
- Attend Membership Meetings – Membership meetings are limited to the association’s members. (Civ. Code § 5000.) A member may not have a tenant attend a membership meeting as the member’s proxy, as a proxy may only be given to another member. (Civ. Code § 5130(a)(1).)
- Voting – A tenant may not be given the right to vote on behalf of a member, as proxies may only be given to other members of the association. (Civ. Code § 5130(a)(1).)
- Dispute Resolution – The dispute resolution procedures (i.e., IDR and ADR) which may be employed by an association’s members do not extend to their renters. (Civ. Code §§ 5900(a), 5910, 5930(a).)
- Standing to Sue Association – As provided for in Civil Code Section 5975, an association’s governing documents may be enforced by either the association or an “owner of a separate interest.” In Martin v. Bridgeport Community Association, the California Court of Appeal explicitly addressed this issue and held that renters do not have standing to sue an association for breach of its CC&Rs and violations of the Davis-Stirling Act, despite the fact that the owner had executed a power of attorney to his renters to handle matters relating to the owner’s property:
“…the right of enforcement is inextricable from ownership of real property…and thus, cannot be assigned absent a transfer of ownership of the parcel to which it applies…
…Not being owners and, therefore, having no authority to enforce the CC&Rs…[the renters] do not have standing to maintain the cause of action.” (Martin v. Bridgeport Community Assn. (2009) 173 Cal.App.4th 1024, 1036 and 1038.)
Limitations on Rental Prohibitions
The California Legislature had enacted several pieces of legislation limiting the degree to which an HOA’s governing documents may be utilized to prohibit and restrict rental activities within the HOA’s development. That legislation served to (a) render unenforceable broad prohibitions on rentals within an HOA, (b) limit the the types of rental restrictions an HOA may adopt and enforce, and (c) insulate owners from having to comply with newly adopted rental restrictions that were not in effect at the time the owner acquired title to their property within the HOA’s development.
*Note – In reading the information below, it is important to note the Civil Code’s definition of an owner’s “separate interest.” In a condominium project, the owner’s separate interest would be the owner’s condominium unit; in a planned development, the owner’s separate interest would be the owner’s lot. For more information, see “Separate Interests” and Civil Code section 4185.
Broad Rental Prohibitions are Not Enforceable
Civil Code section 4741 provides that an owner within an HOA is not subject to a provision of the HOA’s governing documents, or an amendment to the governing documents, that prohibits, has the effect of prohibiting, or unreasonably restricts the rental or leasing of any of the separate interests, accessory dwelling units (ADUs), or junior accessory dwelling units (JADUs) in the HOA to a renter, lessee or tenant. (Civ. Code § 4741(a).)
Prohibitions on the Rental of Individual Rooms for Owner-Occupied Units
In situations where an owner seeks to rental our a portion of their separate interest (e.g., an individual room in the home) to a renter, lessee or tenant, an HOA’s governing documents cannot prohibit such a rental provided that (a) the owner occupies the separate interest while a portion of it is being rented out, and (b) the portion being rented out is for a term of more than thirty (30) days. (Civ. Code § 4739.)
Restrictions Capping the Number of Rentals to 25% or More of the Separate Interests are Permitted
Civil Code section 4741 does allow for an HOA to place a ceiling (or ‘cap’) on the amount of rentals that may exist in the HOA at any one time to 25% (or more) of the separate interests:
“A common interest development shall not adopt or enforce a provision in a governing document or amendment to a governing document that restricts the rental or lease of separate interests within a common interest to less than 25 percent of the separate interests. Nothing in this subdivision prohibits a common interest development from adopting or enforcing a provision authorizing a higher percentage of separate interests to be rented or leased.” (Civ. Code § 4741(b).)
To illustrate: if an HOA has 100 separate interests, the HOA may adopt a restriction providing that once 25 separate interests are being rented out, no other separate interest may be rented until one of the 25 rented separate interests ceases to be rented out. The same HOA would also be able to, if so desired, adopt a more relaxed restriction authorizing a higher percentage of rentals (e.g., a cap of 30 separate interests). However, the same HOA would not be able to adopt a more restrictive provision (e.g., a restriction imposing a cap of 15 separate interests, as such a restriction would be in violation of 25% threshold established under Civil Code section 4741(b) referenced above).
Prohibitions on Short-term Rentals are Permitted
Civil Code section 4741 also allows for an HOA to adopt and enforce a provision that “prohibits transient or short-term rental of a separate property interest for a period of 30 days or less.” (Civ. Code § 4741(c).)
*Note – The Legislature’s introduction of the unique term “separate property interest” in Civil Code section 4741(c) is considered by many HOA attorneys as a term which consolidates “separate interest” together with ADUs and JADUs; however, the proper interpretation of that language remains unsettled.
ADUs and JADUs are not “Separate Interests”
For the purposes of applying Civil Code section 4741’s provisions, ADUs and JADUs “shall not be construed as a separate interest.” (Civ. Code § 4741(d).)
This language is significant in situations where an HOA has imposed an enforceable rental cap. To illustrate: if the 100 separate interest HOA referenced above with a 25% rental cap already has 25 separate interests being rented out, that cap would have no impact on an owner’s desire to now rent out the owner’s ADU or JADU, as the owner’s ADU or JADU cannot be considered a “separate interest” to which the rental cap applies.
Separate Interest not “Rented” if Owner Occupies the Separate Interest, ADU, or JADU
For the purposes of applying Civil Code section 4741’s provisions, “a separate interest shall not be counted as occupied by a renter if the separate interest, or the accessory dwelling unit or junior accessory dwelling unit of the separate interest, is occupied by the owner.” (Civ. Code § 4741(e).)
This language is significant in situations where an HOA has a imposed an enforceable rental cap and/or an enforceable prohibition on short-term rentals. To illustrate: if the 100 separate interest HOA referenced above with a 25% rental cap already has 25 separate interests being rented out, the rental cap would be unenforceable against an owner who wants to now rent out the owner’s separate interest while residing within the owner’s ADU or JADU on the separate interest. To illustrate further: if the HOA also has a prohibition on short-term rentals, that owner would be able to rent out his separate interest for short-term rental purposes so long as the owner resides within the ADU or JADU on the separate interest.
Newly Adopted Rental Prohibitions are Only Enforceable Against Future Owners
Civil Code section 4740 further limits the enforcement of HOA rental prohibitions beyond what is provided in Civil Code section 4741 discussed above. Section 4740 provides that:
“An owner of a separate interest in a common interest development shall not be subject to a provision in a governing document or an amendment to a governing document that prohibits the rental or leasing of any of the separate interests in that common interest development to a renter, lessee, or tenant unless that governing document, or amendment thereto, was effective prior to the date the owner acquired title to his or her separate interest…” (Civ. Code § 4740(a).)
Thus, where an otherwise valid rental prohibition is incorporated into a HOA’s governing documents, that prohibition is only enforceable against an owner that bought into the HOA’s development after the rental prohibition became effective. This was affirmed by the California Court of Appeals in Brown v. Montage at Mission Hills, Inc. (2021) 68 Cal.App.5th 124, where the court held that an existing owner within a HOA who was renting out her separate interest for short-term purposes was exempt from a new amendment to the HOA’s governing documents that prohibited short-term rentals.
Verification Requirement
Where an owner seeks to utilize the protections under Civil Code section 4740 and rent out their property, the owner is required to first provide the HOA with (1) verification of the date the owner acquired title to his property, and (2) the name and contact information of the prospective tenant or the tenant’s representative. (Civ. Code § 4740(c).)
Requirement to Remove Unlawful Rental Prohibitions from Governing Documents no later than July 1, 2022
Civil Code section 4741 further imposes a mandate on HOAs to amend their governing documents as necessary to remove any unlawful rental prohibitions no later than July 1, 2022.
No Membership Approval Required for Amendment
In situations where amending a governing document in this regard would typically require membership approval (e.g., where the CC&Rs need to be amended to remove unlawful rental prohibitions), Civil Code section 4741 allows for the board to amend and restate the CC&Rs without membership approval by utilizing a process identical to that which is required for amending operating rules. (Civ. Code § 4741(f).)
Penalties for Noncompliance
An HOA that willfully violates Section 4741 “shall be liable to the applicant or other party for actual damages, and shall pay a civil penalty to the applicant or other party in an amount not to exceed one thousand dollars ($1,000).” (Civ. Code § 4741(g).)
Requirement to Notify Association of Occupancy and Rental Status
As part of the requirement under Civil Code section 4041 for each member to, on an annual basis, provide the association with information regarding the member’s preferred and alternative contact methods, each member must also inform the association whether the member’s property is owner-occupied or whether the member’s property is being rented out. (See “Annual Notice & Solicitation of Member Contact Information.”)
Disclosure of Rental Prohibition to Prospective Purchaser
If a provision of an association’s governing documents “prohibits the rental or leasing of any of the separate interests in the common interest development,” the owner of a property has a duty to disclose to its prospective purchaser the existence of the rental prohibition and provide a statement describing the prohibition. (Civ. Code § 4525(a)(9).)
Rental Restrictions (Generally)
HOAs with significant populations of renters may encounter problems that do not arise in developments that consist of primarily owner-occupied homes and condominiums. Those problems typically include higher amounts of assessment delinquencies, more rules violations, lower maintenance standards, more insurance claims, etc. HOAs seeking to avoid such problems often amend their governing documents (i.e., amend their CC&Rs) to impose reasonable rental restrictions within their developments. California courts have recognized a HOA’s authority to take such action as well as its general power to regulate rentals:
“Reasonable restrictions on alienation of condominiums are entirely consistent with Civil Code section 711 in which the California law on unlawful restraints on alienation has its origins. The day has long since passed when the rule in California was that all restraints on alienation were unlawful under the statute; it is now the settled law in this jurisdiction that only unreasonable restraints on alienation are invalid. (Laguna Royale Owners Assn. v. Darger (1981) 119 Cal.App.3d 670, 682.)
“The power to regulate pertains to a wide spectrum of activities, such as the volume of playing music, hours of social gatherings, use of patio furniture and barbecues, and rental of units.” (Nahrstedt v. Lakeside Village Condominium Assn. (1994) 8 Cal.4th 361, FN 6.)
“Here we hold, among other things, that homeowners associations may adopt reasonable rules and impose fees on members relating to short-term rentals of condominium units.” (Watts v. Oak Shores Community Assn. (2015) 235 Cal.App.4th 466, 468.)
Statutory Limitations on Rental Prohibitions within HOAs
The policy of the California Legislature in seeking to address the state’s housing and homelessness crisis has resulted in several changes to the law that significantly limit the degree to which an HOA may restrict the rights of its members to rent out their homes. For information addressing those limitations and the only rental prohibitions that may be lawfully enforced, see “Limitations on Rental Prohibitions.”
Disclosure of Rental Prohibition to Prospective Purchaser
If a provision of an association’s governing documents “prohibits the rental or leasing of any of the separate interests in the common interest development,” the owner of a property has a duty to disclose to its prospective purchaser the existence of the rental prohibition and provide a statement describing the prohibition. (Civ. Code § 4525(a)(9).)
Real Estate Signs
Commercial in Nature
Civil Code Section 4710 provides homeowners with rights to display and post noncommercial signs in or upon their separate interests, subject to certain limitations. (See “Flags, Banners & Signs.”) However, Section 4710 does not apply to the display and posting of real estate signs (i.e., “For Sale” or “For Rent” signs) because such signs are deemed commercial signs. (See Fourth La Costa v. Seith, at 579 (“…signs advertising property for sale or for lease constitute commercial speech as the advertiser’s interest is purely economical.”).)
Notwithstanding that fact, Civil Code Sections 712 and 713 provide homeowners with limited rights to display real estate signs on their properties, subject to the limitations discussed below.
General Protections
Civil Code Section 712 renders void any provision in an association’s governing documents that seeks to prohibit or restrict the right of a property owner or the owner’s agent to display a real estate sign on the owner’s property. (Civ. Code § 712(a).) The real estate sign may advertise the following:
- That the property is for sale, lease or exchange by the owner or his or her agent. (Civ. Code §§ 712(a), 713(a)(1).)
- Directions to the property. (Civ. Code §§ 712(a), 713(a)(2).)
- The owner’s name or the name of the owner’s agent. (Civ. Code § 713(a)(3).)
- The owner’s or agent’s address and telephone number. (Civ. Code § 713(a)(4).)
Sign Posting & Display Locations
Real estate signs may be posted or displayed on the owner’s property, or the property of another with their consent. (Civ. Code §§ 712(a), 713(a).) However, owners have no right to post real estate signs in association common areas if prohibited by the association. (Fourth La Costa v. Seith, at 581.) Therefore, in a condominium situation where the owner does not have a yard, the owner typically posts the real estate sign in the window of his/her unit. In planned developments, the owner may post the sign in any reasonable location of his/her property that is in plain view of the public, so long as it does not adversely affect public safety or traffic safety. (Civ. Code §§ 712(a), 713(a).)
Reasonable Restrictions Permitted
Aesthetic Restrictions – the real estate signs must be of “reasonable dimensions and design.” (Civ. Code §§ 712(a), 713(a).) An association therefore has the authority to impose reasonable restrictions on real estate signs for aesthetic purposes. (Fourth La Costa v. Seith, at 581.)
Quantity Restrictions – an association may limit real estate signs to one (1) sign per unit/property. (Fourth La Costa v. Seith, at 581.)
Removal Requirements – an association may require that signs be removed within a reasonable time-period following a sale (i.e., within three (3) days). (Fourth La Costa v. Seith, at 581.)
Flags, Banners & Signs
The extent to which a HOA may restrict or prohibit homeowners from posting flags, banners and signs depends upon: (1) the nature/content of the flag, banner or sign, (2) its dimensions, and (3) the location where it is to be displayed or posted.
Noncommercial Flags, Banners & Signs Permitted
Civil Code Section 4710 provides homeowners within associations the right to display “noncommercial” signs, posters, flags or banners:
“The governing documents may not prohibit posting or displaying of noncommercial signs, posters, flags, or banners on or in a member’s separate interest, except as required for the protection of public health or safety or if the posting or display would violate a local, state, or federal law.” (Civ. Code § 4710(a).)
Permitted Signage Materials
For the purposes of Section 4710, a noncommercial sign, poster, flag, or banner may be made of “paper, cardboard, cloth, plastic or fabric…but may not be made of lights, roofing, siding, paving materials, flora, or balloons, or any other similar building, landscaping, or decorative component,” nor may it “include the painting of architectural surfaces.” (Civ. Code § 4710(b).)
Permitted Posting Locations
For the purposes of Section 4710, a noncommercial sign, poster, flag or banner “may be posted or displayed from the yard, window, door, balcony, or outside wall of the separate interest.” (Civ. Code §4710(b).) This language does not necessarily permit homeowners to display noncommercial signs upon any portions of HOA common area (i.e., common area parks or recreational facilities, common area walls surrounding condominium units, etc.).
Permitted Sign Dimensions
Section 4710 does allow for a HOA to prohibit flags, banners and signs that exceed the following dimensions:
Noncommercial Signs and Posters that are more than nine (9) square feet in size may be prohibited. (Civ. Code § 4710(c).)
Noncommercial Flags or Banners that are more than fifteen (15) square feet in size may be prohibited. (Civ. Code § 4710(c).)
Political Signs
Although not explicitly addressed in Section 4710, political signage is generally understood to constitute “noncommercial” signage. Additionally, pursuant to Civil Code Section 1940.4, it is unlawful for a landlord to prohibit a residential tenant from posting or displaying a political sign or banner. California Courts have analogized HOAs to landlords in certain respects. (See Frances T. v. Village Green Owners Assn. (1986) 42 Cal.3d 490, 499.)
Commercial Signs & Real Estate Signs
While Section 4710 limits a HOA’s authority to restrict the display or posting of noncommercial signs, its language does not address prohibitions on the display of commercial signs (i.e., a sign advertising a business, promoting a company or individual for profit motives, etc.). By implication, Section 4710 would not impact a HOA’s authority to prohibit or restrict the display of commercial signs. Most sets of HOA governing documents contain restrictions on the commercial use of properties; such restrictions often include language that prohibits commercial signage.
*Exception: Real Estate Signs
Notwithstanding the above, Civil Code Sections 712 and 713 provide homeowners with limited rights to display real estate signs (“For Sale,” “For Rent,” etc.), even though such signs are commercial in nature. (See “Real Estate Signs.”)
Number of Signs
Section 4710 does not address the number of noncommercial signs that may be displayed by a particular homeowner. However, in the case of Fourth La Costa v. Seith, the California Court of Appeal “[saw] no problem with allowing only one sign per unit, or requiring that signs be removed within three days of a lease or sale.” (Fourth La Costa v. Seith (2008) 159 Cal.App.4th 563, 581.) Though that case pertained to real estate signs, the Court’s reasoning could similarly apply to restrictions on the number of noncommercial signs.
U.S. Flags
Civil Code Section 4705 contains similar protections for homeowners displaying a flag of the United States, as well as similar restrictions on permissible flag materials and display locations. However, unlike Section 4710, Section 4705 does not contain language addressing the permissible dimensions of U.S. flags.
Religious Items on Doors
Civil Code sections 1940.45 and 4706 grant members the right to display religious items on the entry doors and door frames to their respective units, subject to certain limitations. (See “Religious Items on Doors.”)
Related Links
Who’s Yard is it Anyway? Part I: Homeowner’s Speech
– Published on HOA Lawyer Blog (March 2025)
Commercial Use & Home Businesses
An association has the general authority to restrict or prohibit the operation of commercial and business activities inside its members’ separate interests (in or upon their respective units or lots). Such restrictions and prohibitions are almost always contained in an association’s governing documents (i.e., in its CC&Rs) from the time the association was originally developed. Those provisions often define “commercial” in a broad sense to include any business, commercial, manufacturing, mercantile, storing, vending or other such non-residential purpose.
The intent behind such provisions are to reduce the burdens placed upon association common areas (i.e., customers/employees parking in the HOA’s streets or parking spaces), and to prevent commercial activities from becoming a nuisance to neighboring homeowners and the HOA in general. Municipal ordinances and laws that permit the operation of home-based business do not necessarily supersede conflicting provisions in an association’s governing documents unless they explicitly state that they do.
Interpretation of CC&R Restrictions & Judicial Deference
CC&R provisions that prohibit and restrict commercial uses and home businesses are often drafted broadly. Courts may grant judicial deference to a decision made by an association’s board of directors as to whether alleged business activity violates those restrictions:
“The trial court properly deferred to the Board’s discretionary decision that the Ketelhuts’ operation of the vineyard did not violate the prohibition against business or commercial activity because it did not affect the community’s residential character.” (Eith v. Ketelhut (2018) 31 Cal.App.5th 1, 17.)
Residential Care Facilities, Sober Living Homes & Day Care Homes
An association is limited in its ability to restrict and prohibit homeowners from operating residential care facilities (i.e., sober living homes) and day care centers out of their homes. (See “Residential Care Facilities,” “Family Day Care Homes” and “Alcohol or Drug Abuse Recovery or Treatment Facilities.“)
Commercial Signage
Civil Code Section 4710 affords homeowners with rights to display “noncommercial” signage on their separate interests. Even where an association does not have a restriction on commercial use, it may still have the authority to prohibit the display of commercial signage on a homeowner’s lot or unit. (See “Flags, Banners & Signs.”)
Related Links
Courts Will Defer to the Decisions of Boards Based on Good Faith and Regard for the Best Interests of the Community
– Published on HOA Lawyer Blog (March 2019)
Pet Restrictions
No Flat Prohibitions
In 1994, the California Supreme Court upheld the validity of a CC&R restriction that broadly prohibited homeowners from having pets in their units. (See Nahrstedt v. Lakeside Village (1994) 8 Cal.4th 361.) Several years after that decision, the California Legislature enacted Civil Code Section 1360.5 (now Civil Code Section 4715) to afford homeowners within associations the limited right to keep and maintain at least one (1) pet. However, as written, Section 4715 does not affect the validity of a pet prohibition contained in an association’s governing documents that has not been “entered into, amended, or otherwise modified” on or after January 1, 2001. (Civ. Code § 4715(e).) This created an ambiguity as to whether Section 4715 applies only to situations where the specific governing document containing the pet prohibition (i.e., the CC&Rs) was amended after 2001, or whether Section 4715 would apply if any governing document of the association was amended or modified after 2001 (i.e., the bylaws, operating rules, etc.).
This ambiguity became especially significant upon the adoption of Civil Code Section 1363.03 (now Civil Code Section 5105) in 2006 that required all associations to adopt election rules. Because election rules are “operating rules” within the meaning of Civil Code Section 4355, they constitute a component of the association’s governing documents for the purposes of Section 4715. (Civ. Code § 4715(d).) Thus, there was a concern that Section 1363.03 (now Section 5105) requiring associations to adopt election rules served to effectively nullify any existing pet prohibitions.
To address this concern, in 2007, Senator Kuehl requested that the California Office of Legislative Counsel (COLC) review this ambiguity and provide some guidance. On July 19, 2007, COLC rendered an opinion that the adoption of election rules pursuant to Section 1363.03 would indeed void pet prohibitions contained in other provisions of an association’s governing documents. The COLC opinion states in pertinent part that:
“…it is our opinion that, under Section 1363.05 of the Civil Code, the adoption of a rule by a common interest development to comply with the election requirements of Section 1363.03 of the Civil Code renders unenforceable a provision of the governing documents of that development that prohibits the keeping of at least one pet.”
While the COLC opinion does not have the weight of law or legal precedent, it does illustrate how courts may interpret Section 4715 moving forward. The HOA industry took notice of the COLC opinion, and the general consensus among HOA attorneys is that flat prohibitions on pets are no longer enforceable.
Reasonable Restrictions Permitted
The rights afforded to homeowners under Section 4715 are “subject to reasonable rules and regulations of the association.” (Civ. Code § 4715(a).) Rules and regulations utilized by associations in this respect typically include restrictions on the type of breed, size (weight), and number of pets that a homeowner may have. Additionally, associations often enact operating rules that regulate pets entering into the association’s common areas (i.e., rules requiring pets to be leashed when in common area streets, parks, hallways, etc.).
Companion & Service Animals
An association’s authority to regulate and restrict pets is also subject to Federal and State laws prohibiting discrimination against persons with disabilities. Those laws may require an association in particular circumstances to exempt a disabled owner’s pet from having to comply with the association’s otherwise reasonable pet restrictions.
Personal Agriculture & Food Gardens
Civil Code Section 4750 provides homeowners within HOAs limited rights to use their backyards for “personal agriculture” (i.e., food gardens). It renders void and unenforceable any provision of a HOA’s governing documents that “effectively prohibits or unreasonably restricts the use of a homeowner’s backyard for personal agriculture.” (Civ. Code § 4750(b).)
“Personal Agriculture” & “Plant Crops” Defined
For the purposes of Section 4750, “personal agriculture” is defined as:
“…a use of land where an individual cultivates edible plant crops for personal use or donation.” (Civ. Code § 4750(a); Civ. Code § 1940.10(a)(2).)
“Plant crops” are further defined as:
“…any crop in its raw or natural state, which comes from a plant that will bear edible fruits or vegetables. It shall not include marijuana or any unlawful crops or substances.” (Civ. Code § 1940.10(a)(3).)
Limitations
The rights afforded to homeowners under Section 4750 are not absolute and are subject to the following limitations:
- Personal Use or Donation Only – the definition of “personal agriculture” includes edible plant crops grown for “personal use or donation.” (Civ. Code § 4750(a); Civ. Code § 1940.10(a)(2).) “Personal agriculture” would therefore not include edible plant crops which are grown for sale or other commercial purposes.
- No Marijuana or Unlawful Substances – the definition of “plant crops” does not include “marijuana or any unlawful crops or substances.” (Civ. Code § 1940.10(a)(3).)
- Personal Property or Exclusive Use Common Area Only – Section 4750 extends only to the use of a homeowner’s backyard or a yard that is “designated for the exclusive use of the homeowner” (i.e., an exclusive use common area yard or patio). (Civ. Code § 4750(a),(d).) This language suggests that homeowners do not have the right to use the HOA’s general common areas (those common areas which are not exclusive use common areas) for personal agriculture.
- “Reasonable Restrictions” Permitted – Section 4750 does not apply to provisions of a HOA’s governing documents “that impose reasonable restrictions on the use of a homeowner’s yard for personal agriculture.” (Civ. Code § 4750(c)(1).) The issue of “reasonable restrictions” is discussed further below.
- Rules Requiring Clearance of Dead Plant Materials & Weeds – Section 4750 does not prohibit a HOA from applying rules and regulations “requiring that dead plant material and weeds…are regularly cleared from the backyard.” (Civ. Code § 4750(e).) However, those rules and regulations may not apply to “straw, mulch, compost, and other organic materials intended to encourage vegetation and retention of moisture in the soil.” (Civ. Code § 4750(e).)
“Reasonable Restrictions” on Personal Agriculture
Section 4750 does not apply to provisions of a HOA’s governing documents “that impose reasonable restrictions on the use of a homeowner’s yard for personal agriculture.” (Civ. Code § 4750(c)(1).) “Reasonable restrictions” are defined as:
“…restrictions that do not significantly increase the cost of engaging in personal agriculture or significantly decrease its efficiency.” (Civ. Code § 4750(c)(2).)
Unlike in the context of solar panels, the Civil Code does not define what types of restrictions on the use of a homeowner’s yard for personal agriculture that would result in a “significant” increase in cost or decrease in efficiency.