Can a Homeowners Association Vote to Exclude Rentals in California?
Full Question:
My homeowners' association sent a notice saying they were sending ballots to owners (I own this house but rent it out--it's in a retirement community) to get a 60% 'yes' response to limiting the number of rentals allowed in the community. In the homeowners' associations rules book, nothing is stated about limiting rentals and I have rented this house out for three years. Can they actually put this cap on and enforce it retroactively? Is that legal? And, what is my recourse if they say it is legal? (I do suspect them of fixing elections etc.)
06/30/2009 |
Category: Real Property ยป Homeowner's ... |
State: California |
#17262
Answer:
In 2008, a bill was introduced to restrict the ability of a HOA to limit rentals. It would stop homeowner associations in the state from restricting the leasing or renting of property unless the restriction was in place when the owner bought the property. Basically, the law would lock in place any existing restrictions and forbid any additional restrictions--with several exceptions. However, the bill was vetoed by the governor last September. The California has upheld the ability of a HOA to enforce restrictions retroactively.
Please review the information below and the governing documents of the HOA to determine whether applicable law was followed and the procedures for resolving disputes.
The following are CA statutes:
1368.1.
(a) Any rule or regulation of an association that
arbitrarily or unreasonably restricts an owner's ability to market
his or her interest in a common interest development is void.
(b) No association may adopt, enforce, or otherwise impose any
rule or regulation that does either of the following:
(1) Imposes an assessment or fee in connection with the marketing
of an owner's interest in an amount that exceeds the association's
actual or direct costs. That assessment or fee shall be deemed to
violate the limitation set forth in Section 1366.1.
(2) Establishes an exclusive relationship with a real estate
broker through which the sale or marketing of interests in the
development is required to occur. The limitation set forth in this
paragraph does not apply to the sale or marketing of separate
interests owned by the association or to the sale or marketing of
common areas by the association.
(c) For purposes of this section, "market" and "marketing" mean
listing, advertising, or obtaining or providing access to show the
owner's interest in the development.
(d) This section does not apply to rules or regulations made
pursuant to Section 712 or 713 regarding real estate signs.
1357.130.
(a) The board of directors shall provide written notice
of a proposed rule change to the members at least 30 days before
making the rule change. The notice shall include the text of the
proposed rule change and a description of the purpose and effect of
the proposed rule change. Notice is not required under this
subdivision if the board of directors determines that an immediate
rule change is necessary to address an imminent threat to public
health or safety or imminent risk of substantial economic loss to the
association.
(b) A decision on a proposed rule change shall be made at a
meeting of the board of directors, after consideration of any
comments made by association members.
(c) As soon as possible after making a rule change, but not more
than 15 days after making the rule change, the board of directors
shall deliver notice of the rule change to every association member.
If the rule change was an emergency rule change made under
subdivision (d), the notice shall include the text of the rule
change, a description of the purpose and effect of the rule change,
and the date that the rule change expires.
(d) If the board of directors determines that an immediate rule
change is required to address an imminent threat to public health or
safety, or an imminent risk of substantial economic loss to the
association, it may make an emergency rule change; and no notice is
required, as specified in subdivision (a). An emergency rule change
is effective for 120 days, unless the rule change provides for a
shorter effective period. A rule change made under this subdivision
may not be readopted under this subdivision.
(e) A notice required by this section is subject to Section
1350.7.
1357.140.
(a) Members of an association owning 5 percent or more of
the separate interests may call a special meeting of the members to
reverse a rule change.
(b) A special meeting of the members may be called by delivering a
written request to the president or secretary of the board of
directors, after which the board shall deliver notice of the meeting
to the association's members and hold the meeting in conformity with
Section 7511 of the Corporations Code. The written request may not
be delivered more than 30 days after the members of the association
are notified of the rule change. Members are deemed to have been
notified of a rule change on delivery of notice of the rule change,
or on enforcement of the resulting rule, whichever is sooner. For
the purposes of Section 8330 of the Corporations Code, collection of
signatures to call a special meeting under this section is a purpose
reasonably related to the interests of the members of the
association. A member request to copy or inspect the membership list
solely for that purpose may not be denied on the grounds that the
purpose is not reasonably related to the member's interests as a
member.
(c) The rule change may be reversed by the affirmative vote of a
majority of the votes represented and voting at a duly held meeting
at which a quorum is present (which affirmative votes also constitute
a majority of the required quorum), or if the declaration or bylaws
require a greater proportion, by the affirmative vote or written
ballot of the proportion required. In lieu of calling the meeting
described in this section, the board may distribute a written ballot
to every member of the association in conformity with the
requirements of Section 7513 of the Corporations Code.
(d) Unless otherwise provided in the declaration or bylaws, for
the purposes of this section, a member may cast one vote per separate
interest owned.
(e) A meeting called under this section is governed by Chapter 5
(commencing with Section 7510) of Part 3 of Division 2 of Title 1 of,
and Sections 7612 and 7613 of, the Corporations Code.
(f) A rule change reversed under this section may not be readopted
for one year after the date of the meeting reversing the rule
change. Nothing in this section precludes the board of directors
from adopting a different rule on the same subject as the rule change
that has been reversed.
(g) As soon as possible after the close of voting, but not more
than 15 days after the close of voting, the board of directors shall
provide notice of the results of a member vote held pursuant to this
section to every association member. Delivery of notice under this
subdivision is subject to Section 1350.7.
(h) This section does not apply to an emergency rule change made
under subdivision (d) of Section 1357.130.
51.3.
(a) The Legislature finds and declares that this section is
essential to establish and preserve specially designed accessible
housing for senior citizens. There are senior citizens who need
special living environments and services, and find that there is an
inadequate supply of this type of housing in the state.
(b) For the purposes of this section, the following definitions
apply:
(1) "Qualifying resident" or "senior citizen" means a person 62
years of age or older, or 55 years of age or older in a senior
citizen housing development.
(2) "Qualified permanent resident" means a person who meets both
of the following requirements:
(A) Was residing with the qualifying resident or senior citizen
prior to the death, hospitalization, or other prolonged absence of,
or the dissolution of marriage with, the qualifying resident or
senior citizen.
(B) Was 45 years of age or older, or was a spouse, cohabitant, or
person providing primary physical or economic support to the
qualifying resident or senior citizen.
(3) "Qualified permanent resident" also means a disabled person or
person with a disabling illness or injury who is a child or
grandchild of the senior citizen or a qualified permanent resident as
defined in paragraph (2) who needs to live with the senior citizen
or qualified permanent resident because of the disabling condition,
illness, or injury. For purposes of this section, "disabled" means a
person who has a disability as defined in subdivision (b) of Section
54. A "disabling injury or illness" means an illness or injury
which results in a condition meeting the definition of disability set
forth in subdivision (b) of Section 54.
(A) For any person who is a qualified permanent resident under
this paragraph whose disabling condition ends, the owner, board of
directors, or other governing body may require the formerly disabled
resident to cease residing in the development upon receipt of six
months' written notice; provided, however, that the owner, board of
directors, or other governing body may allow the person to remain a
resident for up to one year after the disabling condition ends.
(B) The owner, board of directors, or other governing body of the
senior citizen housing development may take action to prohibit or
terminate occupancy by a person who is a qualified permanent resident
under this paragraph if the owner, board of directors, or other
governing body finds, based on credible and objective evidence, that
the person is likely to pose a significant threat to the health or
safety of others that cannot be ameliorated by means of a reasonable
accommodation; provided, however, that the action to prohibit or
terminate the occupancy may be taken only after doing both of the
following:
(i) Providing reasonable notice to and an opportunity to be heard
for the disabled person whose occupancy is being challenged, and
reasonable notice to the coresident parent or grandparent of that
person.
(ii) Giving due consideration to the relevant, credible, and
objective information provided in the hearing. The evidence shall be
taken and held in a confidential manner, pursuant to a closed
session, by the owner, board of directors, or other governing body in
order to preserve the privacy of the affected persons.
The affected persons shall be entitled to have present at the
hearing an attorney or any other person authorized by them to speak
on their behalf or to assist them in the matter.
(4) "Senior citizen housing development" means a residential
development developed, substantially rehabilitated, or substantially
renovated for, senior citizens that has at least 35 dwelling units.
Any senior citizen housing development which is required to obtain a
public report under Section 11010 of the Business and Professions
Code and which submits its application for a public report after July
1, 2001, shall be required to have been issued a public report as a
senior citizen housing development under Section 11010.05 of the
Business and Professions Code. No housing development constructed
prior to January 1, 1985, shall fail to qualify as a senior citizen
housing development because it was not originally developed or put to
use for occupancy by senior citizens.
(5) "Dwelling unit" or "housing" means any residential
accommodation other than a mobilehome.
(6) "Cohabitant" refers to persons who live together as husband
and wife, or persons who are domestic partners within the meaning of
Section 297 of the Family Code.
(7) "Permitted health care resident" means 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. For the purposes of this section, the care provided by a
permitted health care resident must be substantial in nature and must
provide either assistance with necessary daily activities or medical
treatment, or both.
A permitted health care resident shall be entitled to continue his
or her occupancy, residency, or use of the dwelling unit as a
permitted resident in the absence of the senior citizen from the
dwelling unit only if both of the following are applicable:
(A) The senior citizen became absent from the dwelling due to
hospitalization or other necessary medical treatment and expects to
return to his or her residence within 90 days from the date the
absence began.
(B) The absent senior citizen or an authorized person acting for
the senior citizen submits a written request to the owner, board of
directors, or governing board stating that the senior citizen desires
that the permitted health care resident be allowed to remain in
order to be present when the senior citizen returns to reside in the
development.
Upon written request by the senior citizen or an authorized person
acting for the senior citizen, the owner, board of directors, or
governing board shall have the discretion to allow a permitted health
care resident to remain for a time period longer than 90 days from
the date that the senior citizen's absence began, if it appears that
the senior citizen will return within a period of time not to exceed
an additional 90 days.
(c) The covenants, conditions, and restrictions and other
documents or written policy shall set forth the limitations on
occupancy, residency, or use on the basis of age. Any such
limitation shall not be more exclusive than to require that one
person in residence in each dwelling unit may be required to be a
senior citizen and that each other resident in the same dwelling unit
may be required to be a qualified permanent resident, a permitted
health care resident, or a person under 55 years of age whose
occupancy is permitted under subdivision (h) of this section or under
subdivision (b) of Section 51.4. That limitation may be less
exclusive, but shall at least require that the persons commencing any
occupancy of a dwelling unit include a senior citizen who intends to
reside in the unit as his or her primary residence on a permanent
basis. The application of the rules set forth in this subdivision
regarding limitations on occupancy may result in less than all of the
dwellings being actually occupied by a senior citizen.
(d) The covenants, conditions, and restrictions or other documents
or written policy shall permit temporary residency, as a guest of a
senior citizen or qualified permanent resident, by a person of less
than 55 years of age for periods of time, not less than 60 days in
any year, that are specified in the covenants, conditions, and
restrictions or other documents or written policy.
(e) Upon the death or dissolution of marriage, or upon
hospitalization, or other prolonged absence of the qualifying
resident, any qualified permanent resident shall be entitled to
continue his or her occupancy, residency, or use of the dwelling unit
as a permitted resident. This subdivision shall not apply to a
permitted health care resident.
(f) The condominium, stock cooperative, limited-equity housing
cooperative, planned development, or multiple-family residential
rental property shall have been developed for, and initially been put
to use as, housing for senior citizens, or shall have been
substantially rehabilitated or renovated for, and immediately
afterward put to use as, housing for senior citizens, as provided in
this section; provided, however, that no housing development
constructed prior to January 1, 1985, shall fail to qualify as a
senior citizen housing development because it was not originally
developed for or originally put to use for occupancy by senior
citizens.
(g) The covenants, conditions, and restrictions or other documents
or written policies applicable to any condominium, stock
cooperative, limited-equity housing cooperative, planned development,
or multiple-family residential property that contained age
restrictions on January 1, 1984, shall be enforceable only to the
extent permitted by this section, notwithstanding lower age
restrictions contained in those documents or policies.
(h) Any person who has the right to reside in, occupy, or use the
housing or an unimproved lot subject to this section on January 1,
1985, shall not be deprived of the right to continue that residency,
occupancy, or use as the result of the enactment of this section.
(i) The covenants, conditions, and restrictions or other documents
or written policy of the senior citizen housing development shall
permit the occupancy of a dwelling unit by a permitted health care
resident during any period that the person is actually providing
live-in, long-term, or hospice health care to a qualifying resident
for compensation. For purposes of this subdivision, the term "for
compensation" shall include provisions of lodging and food in
exchange for care.
(j) Notwithstanding any other provision of this section, this
section shall not apply to the County of Riverside.
