Dear Mr. Richardson: Can an HOA come up with new house rules that ban children from playing outside the units? Especially with many young children that live here.
Under the California Fair Employment and Housing Act (Government Code 12900-12996), “familial status” is protected against discrimination by Government Code 12955(a). This means one cannot discriminate against residents with children. Rules targeting the activities of children are illegal discrimination, even if they are well-intentioned and appear to be based upon safety reasons. If due to safety concerns an association wishes to curtail recreational activities in common areas, an operating rule should not mention the age of the person doing so, but instead should simply focus on the activity. For example, would skateboarding by legendary skater Tony Hawk be OK in the common areas? What about Lionel Messi playing soccer in the parking lot or drive aisles? If not, then simply ban skateboarding and soccer and avoid mentioning the age of the participants.
California law specifically allows senior communities to discriminate based upon familial status, by exempting them from Government Code 12955. Section 12955.9 specifically excludes “housing for older persons” from the ban on familial status discrimination.
Associations should be careful in drafting rules to avoid discrimination. Not only does the Department of Fair Employment and Housing pursue violations, but private housing rights organizations and aggrieved residents all can pursue lawsuits as well.
I am disabled and cannot walk easily, properly, or safely when there are obstacles in my way. It is very easy to trip and fall. My HOA has been allowing large numbers of residents to park their vehicles on the sidewalk, blocking my path and the path of my disabled neighbors, forcing us to walk in the street, and increasing the likelihood that I will trip and fall.
Since I am in a protected class of people, if I seek a “reasonable accommodation” from my HOA, what are my chances in getting them to abide by state law and city municipal codes which say that vehicles may not park on sidewalks? I can’t even walk to see my neighbor down the street.
Thank you. G.C., San Diego
Persons with disabilities may ask their HOA for reasonable accommodations to allow them to enjoy their residence and community amenities. However, the issue does not pertain to an access impediment to your home or to a specific amenity in the HOA. The situation you describe affects all residents, not only those with mobility disabilities. The accommodation you seek might be controversial. For example, in some situations in which sidewalks are frequently blocked by parked cars the cause is driveways which are too short to fit normal cars.
The Fair Housing Regulations require you and the HOA to pursue an “interactive process,” meaning a dialogue regarding your request. Describe your concern and ask to meet to discuss what the board can do. If it proves all but impossible to help, the accommodation would be considered “unreasonable.” Everybody should try to work together.
Another factor is safety- is the board addressing the possible safety concern about all residents being forced to walk in the street? This might be a concern which should be considered.
Best regards, Kelly.
Written by Kelly G. Richardson
Kelly G. Richardson, Esq. is a Fellow of the College of Community Association Lawyers and Partner of Richardson Ober DeNichilo LLP, a California law firm known for community association expertise. Submit questions to Kelly@rodllp.com. Past columns at www.HOAHomefront.com. All rights reserved®.