Homeowners' Guide to California HOA Laws

The Davis-Stirling Common Interest Development Act (Cal. Civ. Code §§ 4000–6150) governs HOAs in California. Initially passed in 1985, Davis-Stirling has been frequently amended since and addresses nearly every aspect of an HOA's existence and operation.

Davis-Stirling applies to residential "common interest developments" located within California and the associations formed to manage them. Cal. Civ. Code § 4200. Along with HOAs, common interest developments can include condominiums, community apartments, planned developments, and stock cooperatives. Cal. Civ. Code § 4100.

In general, Davis-Stirling governs the creation and planning of new common interest developments and the formation and operation of HOAs and other community associations. Among many other things, it sets standards for board elections, association and board meetings, transfer of property interests, voting, budgeting and assessments, recordkeeping and inspection, and association reporting.

Like most state HOA laws, Davis-Stirling empowers association boards to act on behalf of the community, places limitations on board members and officers, and protects certain rights of homeowners. Where it is somewhat unique is the level of detail it goes into when defining the relative powers and rights of the parties. For example, the statute expressly acknowledges residents' right to:

• Peacefully assemble politically (§ 4515),
• Veto rule changes proposed by the board (§ 4365), and
• Display the U.S. flag and religious symbols (§ 4705, § 4706).

Importantly, Davis-Stirling also limits the power of an HOA to restrict, among other things:

• Pet ownership by residents (§ 4715),
• The rental of homes in the community (§ 4740), and
• Homeowners' ability to garden (§ 4750).

The Davis-Stirling Act is organized into the following eleven chapters:

1. General Provisions
2. Application of Davis-Stirling Act
3. Governing Documents
4. Ownership and Transfer of Interests
5. Property Use and Maintenance
6. Association Governance
7. Finances
8. Assessments and Assessment Collection
9. Insurance and Liability
10. Dispute Resolution and Enforcement
11. Construction Defect Litigation

Each chapter is further subdivided into as many as ten articles, and each article includes varying numbers of individual sections.

Condominium associations in California are, like HOAs, primarily governed by the Davis-Stirling Act. While most of the statute's provisions apply to both condominiums and HOAs, Davis-Stirling includes several provisions specific to condos — including rules for creating, recording, and amending condominium plans and limitations on the divisibility of condominium interests. Cal. Civ. Code §§ 4285–4295, 4610, 4630.

"Stock cooperative" associations (commonly called "co-ops") in California are likewise governed by the Davis-Stirling Act. A stock cooperative is a corporation formed for the primary purpose of owning real estate, and shareholders in the corporation receive an exclusive occupancy right in part of the co-op's property. Cal. Civ. Code § 4190(a).

In California, a stockholder's stake in a residential co-op is treated along the same lines as rights to individual properties and common elements in an HOA or condo association. Id.

Under the Davis-Stirling Act, an association managing a common interest development can be either a nonprofit corporation or an unincorporated association. Cal. Civ. Code § 4080, 4800. Associations that incorporate are required to file articles of incorporation with the California Secretary of State. Cal. Civ. Code § 4280.

Whether or not incorporated, community associations are granted the powers of nonprofit mutual benefit associations under the California Corporations Code, § 7140, including the powers to adopt bylaws and enter into contracts.

General matters of corporate governance, when not explicitly addressed by Davis-Stirling, are controlled by the California Corporations Code — more specifically, the provisions applying to nonprofit corporations and nonprofit mutual benefit corporations.

Among the most important of the Davis-Stirling Act's provisions are the limits it places on a community association's power to control how homeowners use and access their properties. While the general rule is that HOA and condominium declarations are essentially private contracts enforced as written, in some cases the legislature has recognized that certain rights or public policies are important enough to merit statutory protection.

Rental restrictions

Courts throughout the U.S. have consistently upheld HOA rental restrictions as long as an association can cite a legitimate purpose for the restriction. See Four Brothers Homes at Heartland Condominium II v. Gerbino, 691 N.Y.S.2d 114 (1999).

For some owners, though, the ability to rent out a residence can make up a big part of a property's value, so depriving owners of that ability amounts to depriving them of a significant property right. The California legislature has sought to balance community interests and homeowner property rights by allowing enforcement of rental restrictions already in place when a property is purchased, while "grandfathering" the right to rent for owners who already held title when a restriction was adopted. Cal. Civ. Code § 4740(a), (b).

Reasonable limitations (but not outright prohibitions) are generally enforceable, even against owners whose interests pre-date the limitation. Nahrstedt v. Lakeside Village Condominium Assn. (1994) 8 Cal.4th 361; Laguna Royale Owners Assn. v. Darger (1981) 119 Cal.App.3d 670. And to keep purchasers from unknowingly buying into rental restrictions, California gives buyers the right to be informed of any rental restrictions before a sale contract is executed or title transferred. Cal. Civ. Code § 4525(a)(9).

Commercial use restrictions

Reasonable restrictions against commercial use of residential properties are enforceable across the country, and many HOAs are already subject to zoning ordinances limiting properties to residential use. Significantly, short-term rentals (e.g., Airbnb) can sometimes implicate community prohibitions against commercial use even where the rental would not offend a zoning ordinance.

California courts have acknowledged that short-term rentals can impose unique burdens on a community and have generally allowed restrictions on them even where an outright prohibition might be unenforceable under Cal. Civ. Code § 4740. The idea is that short-term-rental restrictions are rules or limitations (not prohibitions), so minimum lease periods, for example, are reasonable exercises of a community association's authority. Watts v. Oak Shores Community Assn. (2015) 235 Cal.App.4th 466; Mission Shores Assoc. v. Pheil (2008) 166 Cal.App.4th 789.

Street parking and towing

HOAs and condominium associations may enact restrictions that serve a legitimate purpose, including protecting the aesthetics and accessibility of a community. Cal. Civ. Code § 5975; Laguna Royale Owners Assn. v. Darger (1981) 119 Cal.App.3d 670. Associations have the power to regulate the use of common areas, so regulating parking on a private street or lot that is a common element is within their powers — potentially including limiting vehicles per member or assigning parking spots.

Public streets are not common elements, so an HOA cannot regulate parking on a public street. However, associations can place restrictions on the activities of members within the community, so a reasonable limitation on public-street parking by members is likely enforceable, even though the issue is not entirely clear under California law.

Under limited circumstances, California law permits associations to tow improperly parked vehicles. Cal. Veh. Code § 22658. To do so, a compliant "no parking" sign must be:

• posted in plain view; or
• the vehicle must have been issued a notice of the parking violation at least 96 hours before towing; or
• the vehicle must be inoperable; or
• the vehicle must be parked on a lot or parcel that includes a single-family dwelling. Id.

An association's towing request needs to include a compliant authorization, and, to the extent possible, the association must also provide notice of towing to the vehicle owner.

Religious symbols

Davis-Stirling expressly recognizes the right of HOA and condominium residents to display religious items on the entry doors to their homes if the display is motivated by sincerely held religious belief. Cal. Civ. Code § 4706. Associations can limit a religious display to the extent it threatens public health or safety, hinders opening/closing of the door, violates relevant law, includes obscene or illegal images or language, or exceeds 3′ × 1′ in size. Cal. Civ. Code § 1940.45. Associations can request temporary removal of a protected display to the extent necessary for maintenance and repairs.

Political signs

Although First Amendment rights are generally inapplicable to transactions between private parties, the U.S. Supreme Court has held that a state has the "sovereign right to adopt in its own Constitution individual liberties more expansive than those conferred by the Federal Constitution." PruneYard Shopping Center v. Robins, 447 U.S. 74, 81 (1980). To that effect, Davis-Stirling includes explicit protections of residents' right to engage in political activities.

Members of California community associations cannot be prohibited from peacefully assembling for political purposes, inviting officials or candidates to speak in the community, or canvassing or petitioning within the community. Cal. Civ. Code § 4515(b).

Although Davis-Stirling does not expressly address political signs, it does protect members' right to display "noncommercial signs," which can include political signs. Cal. Civ. Code § 4710. Specifically, associations may not prohibit members from displaying noncommercial "signs, posters, flags, or banners on or in a member's separate interest." Associations may prohibit signs "made of lights, roofing, siding, paving materials, flora, or balloons," limit the size of signs over nine square feet, or forbid signs that endanger public health or safety or violate relevant law. Id.

U.S. flag display

Like the federal Freedom to Display the American Flag Act of 2005, Davis-Stirling forbids community associations from banning or limiting the display of the American flag. Cal. Civ. Code § 4705. The California law protects display of an actual flag on a flagpole or in a window, not "a depiction or emblem of the flag of the United States" made of materials other than fabric, cloth, or paper. Id.

Unlike the federal statute, California's flag-protection law does not include a carve-out allowing reasonable restrictions on the "time, place, and manner" of the display. And unlike flag-protection laws in many other states, Davis-Stirling does not include the state flag within its protections.

Satellite dishes, solar panels & other architectural restrictions

Davis-Stirling includes several precise limits on an association's power to restrict devices on a homeowner's property. For example, TV antennas and satellite dishes up to 36 inches that are not readily visible from common areas are protected, subject to "reasonable restrictions" that do not significantly affect cost or effectiveness. Cal. Civ. Code § 4725.

Any prohibitions on the use of a solar energy system or electric vehicle charging station are void and unenforceable, provided the system is up to code. Cal. Civ. Code § 714, 4745. "Reasonable restrictions" that do not affect cost, efficiency, or performance are allowable, and an association can require liability insurance and notice to other owners if the system will be installed in a common area, including a common-area roof. Cal. Civ. Code § 4746.

Davis-Stirling also protects homeowners' right to garden in their own (i.e., exclusive-use) backyards. HOA prohibitions and unreasonable restrictions against personal agriculture are void and unenforceable. Cal. Civ. Code § 4750. "Personal agriculture" means the cultivation of "edible plant crops for personal use or donation." Cal. Civ. Code § 1940.10. Similarly, associations cannot prohibit or unreasonably restrict homeowners' use of clotheslines and drying racks in their backyards, though balconies, railings, awnings, and other parts of a building cannot qualify. Cal. Civ. Code § 4753.

In more or less every jurisdiction, members of community associations have a right to inspect association records. Under Davis-Stirling, the "association records" and "enhanced association records" subject to inspection include a community's:

• governing documents;
• most financial records, reports, and statements;
• copies of contracts, proposals, and approvals from vendors or contractors;
• meeting agendas and minutes;
• membership lists; and
• election materials.

Most records must be maintained and available for inspection during the year created and for the following two years. Cal. Civ. Code § 5210(a). Board and member meeting minutes must be maintained indefinitely. Id. Upon a member's request, a California HOA, condominium association, or cooperative governed by Davis-Stirling must produce current-year documents within ten days and prior-year documents within 30 days.

Records are made available for review at the association's business office within the community or at another agreeable location. Cal. Civ. Code § 5205(c). Alternatively, if a member requests copies of specific documents, the association can provide them by first-class mail or electronic transmission if it can be done "in a redacted format that does not allow the records to be altered." Cal. Civ. Code § 5205(c), (d), (h).

An association can withhold or redact certain documents if there is a risk that disclosure could result in fraud or identity theft. Some records — such as executive board meeting minutes, documents subject to attorney-client privilege, records relating to disciplinary or collection actions against members, personnel records, and records of "goods or services provided a la carte to individual members" for consideration other than assessments — are exempt from production or inspection. Cal. Civ. Code § 5215(a)(5).

If an association withholds or redacts records, it must produce a written explanation identifying the legal basis. Cal. Civ. Code § 5215(d). If a court later determines the association wrongfully withheld documents, it can award attorney's fees against the association and a civil penalty of up to $500 per wrongful withholding. Cal. Civ. Code § 5235.

Records relating to compensation paid to employees, vendors, and contractors may not be withheld from an inspection request, though personally identifying information may be redacted; compensation should be categorized by job title rather than employee name. Cal. Civ. Code § 5215(b). If a member seeks a membership list, they must identify the purpose; if the association reasonably believes the request serves an improper purpose, it can refuse to produce the list. Cal. Civ. Code § 5225.

An association may impose a limited charge for producing documents. The charge cannot exceed "all direct and actual costs of copying and mailing" plus labor costs of up to $10.00 per hour (not to exceed twenty hours) for "time actually and reasonably involved in redacting enhanced association records." Cal. Civ. Code § 5205(f), (g).

The Fair Housing Act (FHA), 42 U.S.C. § 3601 et seq., is the quintessential fair housing statute, enacted in 1968 to prohibit housing discrimination based on race, color, religion, sex, familial status, and national origin. Disability-based discrimination was added by a later amendment. 42 U.S.C. § 3604.

Although the FHA does not expressly address age-based discrimination, courts have consistently interpreted nearly any discrimination relating to age (including against children, families with children, or pregnant women) as unlawful "familial status" discrimination. See Iniestra v. Cliff Warren Investments, Inc., 886 F. Supp. 2d 1161, 1164 (C.D. Cal. 2012).

Under the FHA, an HOA or other community association can incur serious legal liability if it takes an adverse action affecting a person's right to buy, rent, or enjoy real estate based on that individual's membership in a protected class. Adverse actions can be rooted in express discrimination, such as exclusionary covenants, or can arise from actions that do not appear discriminatory on the surface but result in a "disparate impact" on a protected group. Texas Dept. of Housing and Community Affairs v. Inclusive Communities Project, Inc., 135 S. Ct. 2507 (2015).

We have previously written in depth about discriminatory housing practices, which can take many forms. For an HOA or condominium association, it might mean:

• adopting a discriminatory covenant,
• failing to provide (or providing inferior) services relating to a resident's membership in a protected class,
• limiting access to amenities by families with children, or
• implementing a tenant-screening policy that disproportionately affects members of a certain group.

Reasonable accommodations

Along with avoiding discriminatory conduct, the Fair Housing Act and, when applicable, the Americans with Disabilities Act (ADA), 42 U.S.C. §§ 12101 et seq., impose an affirmative duty to make "reasonable accommodations" or "reasonable modifications" allowing disabled persons full access to and enjoyment of housing and association benefits.

As defined by the U.S. Department of Justice (DOJ) and the U.S. Department of Housing and Urban Development (HUD), a reasonable accommodation is a "change, exception, or adjustment to a rule, policy, practice, or service that may be necessary for a person with a disability to have an equal opportunity to use and enjoy a dwelling." A reasonable modification is a "structural change made to existing premises … in order to afford such person full enjoyment of the premises."

A reasonable accommodation or modification might mean modifying parking rules for a disabled resident or widening halls or doorways for a resident who uses a wheelchair. A modification or accommodation relating directly to a resident's disability can only be declined "if it would impose an undue financial and administrative burden … [or] would fundamentally alter the nature of the provider's operations." Warren v. Delvista Towers Condo. Assoc., 49 F. Supp. 3d 1082 (2014). Under California's state-level fair housing law, a request can only be denied if it would result in "significant difficulty or expense … when considered under the totality of circumstances." Cal. Code Regs. tit. 2, § 11065(r), 11068.

Assistance animals

The obligation of HOAs and condominium associations to accommodate assistance animals has been the source of substantial litigation in recent years. The Americans with Disabilities Act (ADA) only requires accommodation for "service animals," narrowly defined to include only dogs (and sometimes miniature horses) with specialized training. However, under the federal Fair Housing Act (FHA) standards, an "assistance animal" is "an animal that works, provides assistance, or performs tasks for the benefit of a person with a disability, or provides emotional support that alleviates one or more identified symptoms or effects of a person's disability." HUD FHEO 2013-01. The broader FHA standard sometimes leads to legal problems for HOAs.

In one notable case, a condominium association refused to waive its pet-size restriction to allow a PTSD-suffering veteran to keep his emotional support dog. Bhogaita v. Altamonte Heights Condominium Assn., 765 F.3d 1277 (11th Cir. 2014). The court found the refusal violated the FHA and imposed significant liability on the association.

California state law permits a housing provider to refuse an accommodation if it would involve a legitimate health and safety risk. Cal. Code Regs. tit. 2, § 11067. California also imposes criminal fines up to $1,000 and up to six months imprisonment for falsely claiming that an animal is a service animal. Cal. Penal Code § 365.7.

Though similar in design, California's Fair Employment and Housing Act (FEHA), Cal. Gov. Code § 12900 et seq., and the Unruh Civil Rights Act, Cal. Civ. Code § 51 et seq., increase state-level protection against housing discrimination by adding protected categories for citizenship and immigration status, primary language, sexual orientation, gender identity, genetic information, source of income, and veteran status. California's fair housing laws are administered by the state's Civil Rights Department (formerly the Department of Fair Employment and Housing).

The Americans with Disabilities Act (ADA), 42 U.S.C. §§ 12101 et seq., was enacted in 1990 to protect disabled persons against discrimination in employment, transportation, public accommodations, communications, and access to government programs and services. The statute defines "disability" as a "physical or mental impairment that substantially limits one or more major life activities," potentially including deafness, blindness, mobility impairments, severe diseases, depression, bipolar disorder, and PTSD. 42 U.S.C. § 12102.

Where the Fair Housing Act almost always applies to HOAs and condominium associations, the ADA only applies to associations that meet certain criteria. The most common situation in which an HOA is subject to the ADA is when it has facilities that amount to public accommodations. The ADA identifies twelve types of facilities that qualify as "public accommodations." 42 U.S.C. § 12181(7)(a)–(l). Of the twelve, recreational facilities such as pools, gyms, and golf courses are the most commonly associated with community associations. A large association with at least fifteen employees might also fall within the ADA as an employer. 42 U.S.C. § 12111(5)(A).

If the ADA governs an HOA, it must ensure its operations and facilities are equally accessible to disabled persons. If it qualifies as an employer, it cannot discriminate against disabled persons in firing, hiring, or promotion and cannot permit segregation or harassment of a disabled employee. 42 U.S.C. § 12112(a).

Significantly, for an HOA facility to qualify as a "public accommodation," it must allow access to the general public. If only members have access, it will not qualify and will not be subject to the ADA. So an HOA fitness center that non-residents can access will likely be subject to the ADA, as might a generally accessible restaurant, tavern, or daycare facility. "Service animals" assisting disabled persons are protected under the ADA, but the protection is far more limited than the FHA's protection of "assistance animals" — for the most part, only specially trained dogs qualify, and the ADA does not cover most emotional support animals.

The Fair Debt Collection Practices Act (FDCPA), 15 U.S.C. § 1692 et seq., restricts and regulates the collection of consumer debts by "debt collectors." 15 U.S.C. § 1692a(6). Significantly, a "debt collector" under the statute is someone who collects debts owed to a third-party creditor.

So although HOA assessments usually qualify as "debts" and homeowners as "consumers," an HOA attempting to collect assessments on its own behalf is generally not subject to the FDCPA. Ladick v. Van Gemert, 146 F.3d 1205 (10th Cir. 1998); Thies v. Law Offices of William A. Wyman, 969 F. Supp. 604 (S.D. Cal. 1997). However, the FDCPA does apply when an HOA refers delinquent assessments for collection by a law firm or collection agency. See Fuller v. Becker and Poliakoff, 192 F. Supp. 2d 1361 (M.D. Fla. 2002).

Property management companies working for HOAs sometimes qualify as "debt collectors," depending on the company's "principal purpose." If debt collection is essential to a company's operations, it will likely be a debt collector; if it is only a small or incidental part of what the manager does, it might not be subject to the FDCPA. See, e.g., Alexander v. Omega Management, Inc., 67 F. Supp. 2d 1052 (D. Minn. 1999); Franceschi v. Mautner-Glick Corp., 22 F. Supp. 2d 250 (S.D.N.Y. 1998).

When applicable, the FDCPA prohibits harassment, oppression, and abuse of consumers and specifically forbids, among other things, publication of debt-related information to third parties and collection of fees not expressly allowed by statute or the agreement creating the debt. See 15 U.S.C. § 1692b–f.

California has its own state-level debt collection law, the Rosenthal Fair Debt Collection Practices Act, Cal. Civ. Code §§ 1788–1788.33. One of the Rosenthal Act's most significant provisions is that it applies FDCPA-like restrictions directly to creditors — not just to third-party debt collectors. Thus, a California HOA or condominium association seeking to collect assessments is potentially subject to statutory restrictions on debt collection under California law, even if the FDCPA would not apply directly to the association.

The Servicemembers Civil Relief Act (SCRA), 50 U.S.C. § 3901 et seq., provides additional protections against civil litigation and foreclosure to members of the U.S. armed services. The SCRA protects service members while they are on active duty, and its protections extend to reservists and National Guard members who have been activated for 30 or more consecutive days.

While the SCRA protects a service member, a creditor or lienholder cannot obtain a civil default judgment or foreclose non-judicially on a property owned by the servicemember. For community associations, this means an HOA or condominium association can neither obtain a judgment for delinquent assessments nor foreclose on an assessment lien against a service member protected by the SCRA.

The SCRA caps interest at 6% on debts incurred before a servicemember's service, protecting them for a year afterward. So an association cannot charge a servicemember a rate over 6% if the assessments came due before the period of service. Additionally, activated reservists and redeployed soldiers have a right to terminate residential leases "30 days after the next rent payment is due." 50 U.S.C. § 3955(d)(1).