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DAY CARE CENTERS IN
SENIOR COMMUNITIES
QUESTION: Does your article on
day care
centers apply to 55+ communities?
ANSWER:
Good question! I reviewed applicable statutes and case law and found nothing
that addressed this issue. The legislature may not have intended for children's
day care homes in age-restricted senior developments. Nonetheless, that appears
to be the consequence of the legislation.
Under the day care statute, associations cannot
prohibit or restrict homeowners (or tenants) from operating a family day care
home for 14 or fewer children for periods of less than 24 hours per day. Health
& Safety Code 1597.40(c) and 1596.78(a).
That leaves CC&R age restrictions. Age
restrictions normally apply to people who reside in the community, not visitors.
Children in day care homes visit for less than 24 hours at a time. As a result,
it appears that day care centers can operate in senior communities.
**If anyone is aware of any case law on this
issue we invite your feedback.
SOBER LIVING
vs.
TREATMENT FACILITIES
QUESTION: You said we cannot prohibit
sober living homes, what about alcohol and drug treatment facilities?
ANSWER:
As previously discussed, associations cannot prohibit sober living homes that provide non-medical services to
six or fewer persons who are working
to overcome their addiction to alcohol and drugs.
Sober Living
Fact Sheet. The same is true for licensed
non-medical alcohol and drug treatment facilities--homes that provide one or
more of the following services: detoxification; educational sessions; and recovery or treatment planning.
Licensing Fact Sheet
Thanks to attorney David
Feingold of Ragghianti Freitas LLP for the links to the brochures.
GROUP CARE
HOMES
QUESTION: There is a company that buys houses
in our community and immediately turns them into board and care homes for seniors. We
already have five of these homes. With falling prices on homes, we anticipate
more will be converted. Any rule on this?
ANSWER: As with day care homes for children,
associations cannot prohibit residential care facilities which service six or
fewer persons. H&S 1566.5. A residential facility means any family home or
group care facility providing 24-hour non-medical care to persons in need. Health & Safety
Code
1502(a)(1). These facilities are specifically defined as residential use of
property by a single family. H&S Code 1566.5. This effectively goes around an
association's private restrictions.
Sincerely
yours,
Tina Wang, Esq.
Adams Kessler PLC
HARD TIME
BELIEVING
QUESTION: I have a hard
time believing that our homes can be day care centers with all those cars and
people coming and going and play areas near our homes. We own our homes and land. We pay for the upkeep on our roads
and dues for the clubhouse and pool. I have a hard time believing that day-care
center with up to six clients can operate in our association.
ANSWER: There is a saying attributed to Mark
Twain (and others) that bears repeating: "no man's life, liberty or property are safe
while the legislature is in session."
RESTRICTING
RENTERS
QUESTION: Do HOAs have the legal right
to limit the number of rentals within their HOA, i.e., 10%?
ANSWER:
Yes,
associations have the right to impose
reasonable rent restrictions.
However, there is a bill pending in Sacramento which, if passed into law, would
prohibit associations from imposing rent restrictions on units if those
restrictions did not exist when the unit was last purchased. You can see the
amended bill as it stands now.
SOLAR ENERGY
On June 30, 2008, Governor Schwarzenegger
signed Assembly Bill 1892, which prohibits homeowner associations from barring
the installation of solar energy and solar water heating systems. Although the
Civil Code currently voids CC&R restrictions on the installation of solar energy
systems, it did not include an association's operating rules. The new law
corrects this ambiguity.
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