Ban on Children Under 18 Is Illegal

QUESTION: I serve on the board of directors of my condominium association. We are faced with a new dilemma regarding age restrictions. Our declaration and bylaws state that no owner with children under the age of 18 may live in the building.

We now have a young child residing here who was born after the parents purchased the unit and moved into the building. We have been unsuccessful in our attempts to persuade this family to move out of the building.

Does our failure to enforce the association’s legal documents mean that we can no longer keep children out? Have new laws been passed that prevent our association from restricting children?

ANSWER: If you try to enforce the age restrictions in your association’s documents, you may be committing an illegal act. There are California and federal laws that make most restrictions against children invalid. These laws take precedence over your association documents unless your association can qualify as a senior citizen housing development.

Your board of directors must stop trying to remove the family in question. Your association should also have the “no children” clauses removed from your declaration and bylaws. The presence of these restrictions in your documents, even though you are no longer enforcing them, may convey the wrong idea to prospective buyers who could take action against you for age discrimination.

I asked Richard S. Fiore, attorney with the law firm of Fiore, Nordberg, Walker & Woolf-Willis in Irvine and Riverside, to respond to your question. Fiore is chairman of the Community Assns. Institute’s California Legislative Action Committee, which monitors and disseminates information about pending and new legislation affecting community associations.

Here is Fiore’s response:

“As planned residential communities became popular during the 1970s, many were developed with the concept of restricting ownership and residence to persons within certain age groups. Age restrictions imposed varied from a minimum of 18 years for an adults-only community, to a minimum of 45 or more years for a community restricted to more senior adults.

“The restrictions were included in the recorded covenants, conditions & restrictions (CC&R;), which the governing community association was obligated to enforce.

“In 1983, the California Supreme Court held in O’Connor vs. Village Green Owners Assn., a case involving similar facts as stated in this reader’s question, that an age restriction in the CC&Rs; which limited residency to persons 18 or older violated the California Unruh Civil Rights Act (Civil Code Section 51), and was therefore invalid and unenforceable.

“Although the O’Connor vs. Village Green case determined that a residency restriction of 18 years or older was arbitrary and discriminatory, it left the door open for other forms of age restrictions in housing if reasonable.

“In 1984, the California Legislature amended the Unruh Act to clarify the O’Connor vs. Village Green case and state a public policy in favor of preserving specially designed accessible housing for senior citizens because of an inadequate supply of this type of housing in the state.

“Under this statute, which has been amended several times, senior citizens are defined to include only persons 62 years of age and older, or persons 55 years of age and older residing in a ‘senior citizen housing development.’

“A ‘senior citizen housing development’ as defined by the law is required to have specified numbers of dwelling units depending upon geographical location. To qualify, such housing must also be designed to meet the physical and social needs of senior citizens. The law also states that CC&Rs; or other written policies of an association are only enforceable to the extent permitted by the statute, even though lower age restrictions are contained in those documents.

Consequently, any effort made by a community association to enforce lower age restrictions in its CC&Rs; is a violation of law and could expose the association and the members of its board of directors to liability for damages and penalties provided for under the Unruh Civil Rights Act.”

Fiore explains: “Similar statements of policy favoring senior citizen housing, and the requirements to qualify, are contained in the Federal Fair Housing Amendments Act of 1988. The California law states that it is more difficult to qualify as a seniors-only development under the state law because of the acute shortage of housing for families with children in California.

“However, some lawyers contend that the federal law controls and that a residential development limited to senior citizens qualifies if it meets the requirements of the federal law; others are of the opinion that the state law controls where it is more restrictive.

“What they all agree to, however, is that the issues and requirements of both the state and federal statutes regarding age discrimination and senior citizen housing are numerous and complex, and that boards of directors should consult with their association’s legal counsel to assure that their association and its governing documents are in compliance with applicable state and federal laws if their community is intended to be age restricted and limited to senior citizens.”

Minutes Must Be Taken at Every Board Meeting

Q: Our homeowners association holds an annual meeting each year to elect a board of directors. Until the last two years, meeting minutes were written that stated the names of the candidates and the number of votes each received. The current board chairman says that there is no need to have such minutes. The association bylaws state that “The secretary shall record the minutes of all meetings.”

During the past year, two special meetings were held, which included recall elections. No minutes were written for these two meetings because the chairman states that they are unnecessary.

Is the board chairman correct?

A: In most cases, the annual meeting minutes are read at the subsequent annual meeting and approved or amended by the general membership. Minutes should be taken at all meetings. This is especially important at an election meeting where a quorum is necessary and election results should be a matter of permanent record.

At most annual meetings that I have attended, the inspectors of election announce the election winners without stating the exact number of votes that each candidate received, though that information should be available to any voting member who requests it.

Recall election meetings have special significance since they often result from some type of controversy within the association. Minutes should be kept of these important meetings also. Since your association bylaws specifically state that minutes should be kept of all meetings, the board secretary should write up the meeting minutes whether the board chairman wants them or not. All of the board members are obligated to uphold the bylaws.

Leaky Roof Considered Part of ‘Common Area’

Q: I am one of the owners of a six-unit condominium in Los Angeles. Another unit owner complained of a leaky roof and made threats to all of the owners that she was going to sue because of water damage. Due to her relentless complaints, we owners spent about $8,000 repairing the roof, which was only about 5 or 6 years old.

Now I am wondering if we did the right thing. Because of some comments that I have read in your column, I have come to the conclusion that the individual unit owner was probably responsible for repairing the roof. Can you clarify owner responsibility in this type of situation?

A: Check the legal documents of your condominium association. Your association’s declaration of covenants, conditions and restrictions (CC&Rs;) probably states that the association is responsible for maintaining all common areas, which would include the roof. If you need further clarification after consulting your CC&Rs;, contact an attorney who specializes in community association law.

There are good reasons for the documents providing that the association is responsible for the roof. For consistency, supervision of the quality of the work, and sound financial planning, it is reasonable that the association should take care of the preventive maintenance and future repair.

For instance, if each owner is responsible for only the portion of the roof over his or her unit, the building might end up with a hodgepodge roof over a period of time. If the repair workmanship or materials are poor, then leaks may occur in more than one unit, which could cause a conflict between owners as to the individual responsibility. It would probably be more expensive for each owner to do a portion of the roof than to repair the whole roof at one time.

The original roof should have lasted longer than five or six years. A latent defect may have caused the roof to fail. It might be worth your time to check into the original roof warranty provided by the builder and the roofing subcontractor. However, it may be too late at this point to pursue a construction defect claim.

Wise Association Acts Against Violators

Q: Most of other owners in our 24-unit condominium are elderly, rule-abiding people. Enforcing the rules has not been a problem in the past. However, new owners have moved in with two grown sons who are disrespectful of our association rules and the rights of other owners.

They and their numerous guests take over the pool area for their loud parties, throw their cigarette butts on the carpeted courtyard, and leave litter for other owners to clean up when the party is over. Recently, one of them deliberately stalled the elevator, which caused my wheelchair-bound mother to miss a doctor’s appointment.

I realize that a condominium should not be run like a prison, but we need to start enforcing rules. What can our association do?

A: All associations need to establish procedures for rules violations and the methods of enforcement. As you have seen, a peaceful environment can be totally disrupted by just one family. It is unfair for the board to allow the misfits to disregard other owners’ rights.

The board president should place this matter on the agenda for the next meeting. Meeting minutes will then reflect the action that the board takes. I recommend that the board send written notice of violations to the owners of the unit and ask them to attend a meeting to discuss the problems. The notice should state the type of violation, date that it occurred, and the cost of any damages that resulted.

If the association’s legal documents allow the board to levy fines or other penalties, then these enforcement remedies should be implemented after giving the owners the opportunity to respond and defend themselves. The board should carefully follow the procedures for violation notice and hearing that are stated in the association’s declaration of covenants, conditions and restrictions (CC&Rs;).

Refer the matter to an attorney who specializes in community association law if the owners fail to respond.