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.

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